[Federal Register: February 14, 2003 (Volume 68, Number 31)]

[Rules and Regulations]

[Page 7683-7691]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr14fe03-22]



[[Page 7683]]



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



Part III



Department of Transportation



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



Federal Aviation Administration



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



14 CFR Part 91



Enhanced Security Procedures for Operations at Certain Airports in the

Washington, DC Metropolitan Area Special Flight Rules Area; SFAR 94;

Final Rule



[[Page 7684]]



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



DEPARTMENT OF TRANSPORTATION



Federal Aviation Administration



14 CFR Part 91



[Docket No. FAA-2002-11580; SFAR 94]

RIN 2120-AH62





Enhanced Security Procedures for Operations at Certain Airports

in the Washington, DC Metropolitan Area Special Flight Rules Area; SFAR

94



AGENCY: Federal Aviation Administration (FAA), DOT.



ACTION: Final rule.



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



SUMMARY: This action extends, for 2 years, the expiration date for SFAR

94, which requires any person operating an aircraft to or from College

Park Airport, Potomac Airfield, and Washington Executive/Hyde Field to

conduct those operations in accordance with security procedures

approved by the Administrator. This extension will allow the FAA, along

with other Federal agencies, sufficient time to review current security

threats and associated contingency plans and procedures and to

determine future rulemaking efforts, if any.



DATES: This final rule is effective February 12, 2003 and SFAR 94

published at 67 FR 7538 (February 19, 2002) as amended in this rule

shall remain in effect until February 13, 2005.



FOR FURTHER INFORMATION CONTACT: Reginald C. Matthews, Federal Aviation

Administration, 800 Independence Ave., SW., Washington, DC 20591,

telephone (202) 267-8783; e-mail reginald.matthews@faa.gov.



SUPPLEMENTARY INFORMATION:



Availability of This Action



    You can get an electronic copy using the Internet by taking the

following steps:

    (1) Go to search function of the Department of Transportation's

electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search

).

    (2) On the search page type in the last five digits of the docket

number shown at the beginning of this document. Click on ``search.''

    (3) On the next page, which contains the docket summary information

for the Docket you selected, click on the final rule.

    You can also get an electronic copy using the Internet through

FAA's Web page at http://www.faa.gov/avr/armhome.htm or the Government

Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140html

.

    You can also get a copy by submitting a request to the Federal

Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence

Avenue, SW., Washington, DC 20591, or by calling (202) 267-9680. Be

sure to identify the amendment number or docket number of this final

rule.

    Privacy Act Statement: 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 Entity Inquiries



    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 the FAA's jurisdiction. Therefore, any small entity that has a

question regarding this document may contact its local FAA official.

Internet users can find additional information on SBREFA on the FAA's

Web page at http://www.faa.gov/avr/arm/sbrefa.htm and send electronic

inquiries to the following Internet address: 9-AWA-SBREFA@faa.gov.



Background



    In the aftermath of the September 11, 2001, terrorist attacks which

resulted in the tragic loss of human life at the World Trade Center,

the Pentagon, and in southwest Pennsylvania, the FAA prohibited all

aircraft operations within the National Airspace System, with the

exception of certain military, law enforcement, and emergency related

aircraft operations. This general prohibition was lifted in part on

September 13, 2001. In the Washington, DC Metropolitan area, however,

aircraft operations remained prohibited at all civil airports within a

25-nautical mile radius of the Washington (DCA) Very High Frequency

Omnidirectional Range/Distance Measuring Equipment (VOR/DME). This

action was accomplished via the United States Notice to airmen (NOTAM)

system. Specifically, several NOTAMs were issued according to title 14

Code of Federal Regulations (14 CFR) 91.139, Emergency Air Traffic

Rules, and the implementation of temporary flight restrictions (TFRs)

issued according to 14 CFR 91.137, Temporary Flight Restrictions in the

Vicinity of Disaster/Hazard Areas.

    On October 4, 2001, limited air carrier operations were permitted

to resume at Ronald Reagan Washington National Airport.

    On October 5, 2001, the FAA issued NOTAM 1/0989, which authorized

instrument flight rules (IFR) operations and limited visual flight

rules (VFR) operations within an 18 to 25 nautical mile radius from the

DCA VOR/DME in accordance with emergency air traffic rules issued under

14 CFR 91.139. Exceptions to the restrictions affecting part 91

operations in the Washington, DC area issued since September 11th were

made to permit the repositioning of aircraft from airports within the

area of the TFR and to permit certain operations conducted under

waivers issued by the FAA.

    On December 19, 2001, the FAA canceled NOTAM 1/0989 and issued

NOTAM 1/3354 that, in part, set forth special security instructions

under 14 CFR 99.7 and created a new TFR for the Washington, DC area.

The NOTAM also created TFRs in the Boston and New York City areas. That

action significantly decreased the size of the area subject to the

earlier prohibitions on part 91 operations in the Washington, DC area

and permitted operations at Freeway (W00), Maryland (2W5), and Suburban

(W18) airports. At the same time, the FAA eliminated all ``enhanced

Class B airspace flight restrictions.'' The Enhanced Class B airspace

area consisted of that airspace underlying and overlying Class B

airspace from the surface to flight level 180.

    As security concerns were resolved, most general aviation

operations resumed with varying degrees of restriction. However, due to

their proximity to important national Capitol area assets, three

airports in Maryland (College Park Airport, Potomac Airfield, and

Washington Executive/Hyde field) remained closed for a sustained period

following the September 11 attacks because of the restrictions on

aircraft operations in the airspace that overlies those airports.

    Although many of the restrictions on operations in the Washington,

DC area were eliminated, NOTAM 1/3354 continued to prohibit aircraft

operations under part 91 in airspace that overlies College Park

Airport, Potomac Airfield, and Washington Executive/Hyde Field. On

February 19, 2002, the FAA cancelled NOTAM 1/3354 and issued NOTAM 2/

1369. NOTAM 2/1369 (updated and reissued as 2/2263, on November 27,

2002) contained the description of the Washington



[[Page 7685]]



Metropolitan Area Special Flight Rules Area, as published in SFAR 94,

and prohibited flight by part 91 and certain other aircraft within the

Special Flight Rules Area.

    On February 14, 2002, the FAA issued NOTAM 2/1257 which provided

flight plan filing procedures and ATC arrival and departure procedures

for pilots operating from the three airports in accordance with SFAR

94. The FAA updated and reissued NOTAM 2/1257 as 2/2720 on December 10,

2002. NOTAM 2/2720 permits pilots vetted at any one of the three

Maryland airports to fly into any of the three airports.



Discussion of Comments



    As previously stated, on February 19, 2002, the FAA published SFAR

94 as a final rule (67 FR 7538), and requested public comments

regarding this action. The SFAR defined the Washington, DC Metropolitan

Area Special Flight Rules Area and allowed operations over, to, and

from the three Maryland airports that were closed for security reasons

after September 11, 2001. However, the SFAR imposed new security

procedures for pilots and aircraft operations at these airports.

    In response to the SFAR, the FAA received 30 comments. Among the

commenters were pilots and business operators based at these airports,

transient pilots who regularly used these airports prior to September

11, and the Aircraft Owners and Pilots Association (AOPA).

    Since this action merely extends the expiration date of the SFAR in

order to give concerned government agencies enough time to assess

security requirements and determine appropriate regulatory action, the

FAA is unable to fully address all of the comments received at this

time. However, all comments will be considered prior to taking any

permanent action regarding these airports. With this in mind, the FAA

offers the following responses regarding the comments received.

    Comment: Many commenters stated that they did not see a compelling

reason for this SFAR, as it is their opinion that general aviation

aircraft, and general aviation pilots operating at these airports do

not pose a threat to the nation. Commenters cited incidents in Miami,

FL, and Washington, DC as evidence of the inability of general aviation

aircraft to cause significant damage.

    FAA Response: The incidents identified above all involved very

small aircraft and were all determined not to be associated with

terrorism. These incidents are not representative of the potential

threat posed by general aviation aircraft. FAA and TSA understand that

the enhanced security measures implemented at these airports impact

operations at these airports. However, based on information provided by

Federal security and intelligence agencies, the measures addressed by

this SFAR are necessary to ensure the protection of key assets and

critical infrastructure in the Washington area from airborne attack.

    Initially, the restrictions included six local general aviation

airports. The FAA and TSA, in coordination with other government

agencies, reevaluated the threat and diminished the size of the TFR.

Three airports were completely removed from the TFR restrictions. The

other three airports remain under varying levels of restrictions

because of the ongoing security threats to the government.

    The Federal Government does not currently regulate security at

general aviation airports. With over 19,000 airports, heliports, and

landing strips across the United States, the FAA is exploring alternate

methods to enhance the security of general aviation airports. In the

meantime, however, the Federal Government has determined that the three

specific airports require additional security measures due to their

proximity to the Washington, DC Metropolitan area.

    Comment: Several commenters believe that the SFAR should be

rescinded and airports allowed to return to pre-September 11, 2001,

operations.

    FAA Response: We do not agree with these commenters. The FAA has

met with Federal security and intelligence officials, and has been

advised that, at this time, the threat level is such that the FAA

cannot rescind the SFAR. This extension is temporary and expires on

February 13, 2005. The FAA is keeping the action temporary, because it

is working with the agencies that will make up the Homeland Security

Department to determine whether the SFAR and the airspace restrictions

in the current Washington, DC, NOTAM should be adopted as a permanent

rule.

    Aviation is still viewed as a target and potential weapon by

terrorist organizations. After the events of September 11, 2001,

security at commercial airports has been enhanced. Thus, terrorists may

be looking to alternative methods to conduct terrorist acts. Consistent

with this concern, the Federal Bureau of Investigation (FBI) issued

alerts indicating that, based on threat reporting, the use of ``small

aircraft'' and charters may be of interest to terrorists seeking to

carry out suicide attacks.

    Comment: Numerous commenters would like to see the TFR boundaries

adjusted, or minimized, and others stated that security, as well as air

traffic procedures at these airports should be revised. Specifically,

AOPA commented that the northeast boundary of the SFAR area overlaps a

charted VFR waypoint used by VFR pilots in navigating along a charted

VFR flyway through the Baltimore-Washington Class B airspace area. This

conflict could result in pilots unintentionally violating the SFAR

airspace. In addition, some commenters suggested that the TFR airspace

be defined by the DCA VOR, in lieu of the Washington Monument.

    FAA Response: The TFR of concern to this commenter (NOTAM 1/3354)

is not a part of the SFAR. The TFR issued through NOTAM 2/2263 imposes

restrictions for security purposes. The TFR boundaries coincide with

the Washington, DC Metropolitan Area Special Flight Rules Area that is

described in SFAR 94. The current TFR over the Washington, DC

metropolitan area serves to protect an area containing key assets and

critical government infrastructure. The size of the TFR around

Washington has been agreed to by all the Federal agencies that have

responsibility for ensuring the security of key assets and critical

infrastructure in the area. No changes are being made to the NOTAM at

this time.

    However, the FAA notes that the VFR waypoint that was located on

the northeast boundary of the TFR has been relocated so that it is no

longer within the TFR boundary. In addition, the FAA issued a special

edition of the Baltimore-Washington VFR Terminal Area chart, which

depicts both the relocated waypoint, and the boundaries of the

Washington DC, Metropolitan Area Special Flight Rules Area. Regarding

the definition of the TFR area, originally, NOTAM 1/3354 described the

area with reference to the Washington Monument. However, that NOTAM

also included a detailed description of the TFR area using a

combination of radials and DME from the DCA VOR/DME and latitude/

longitude coordinates for each point. SFAR 94 did not describe the area

with reference to the Monument. Any reference to the Washington

Monument has been deleted from subsequent NOTAMs.

    Comment: Several commenters submitted alternative proposals to the

TFR, such as placing all of the airports under enhanced Class B

airspace, developing an elevated response level that is commensurate

with the National Security level as determined by



[[Page 7686]]



Homeland Security, or upgrading Hyde Field as DCA alternative.

    FAA Response: The FAA finds that under existing circumstances, SFAR

94 continues to provide adequate security for the National Capitol

Area. These comments will be addressed as part of any final decision

regarding the three Maryland airports in question.



Petition for Rulemaking



    On October 16, 2002, the FAA received a petition for rulemaking

from the Aircraft Owners and Pilots Association (AOPA). The petition

seeks relief from the security requirement for pilots at the three

affected airports. Specifically, the petition requests that the FAA

amend SFAR 94 to allow security vetted pilots at the three airports to

conduct flights to any of the other three airports (College Park

Airport, Washington Executive/Hyde Field, Potomac Airport), allow

traffic pattern work at these three airports, and allow transient

pilots to operate at these airports, subject to the security provisions

of this rule. On December 23, 2002, the FAA notified AOPA that the

petition would be considered a comment and placed in the docket for

this SFAR.

    FAA Response: Since SFAR 94 was published, the FAA has issued NOTAM

2/2720 under the Administrator's authority in SFAR 94 to permit

operators based at one of the three Maryland airports to fly into, out

of or between any of the three airports, provided they do the

following:

    1. File an IFR or VFR flight plan with Leesburg Automated Flight

Service Station;

    2. Obtain an Air Traffic Control clearance with a discrete

transponder code; and

    3. Follow arrival/departure procedures contained in the NOTAM.



Justification for Immediate Adoption



    Because the circumstances described herein warrant immediate

action, the Administrator finds that notice and public comment under 5

U.S.C. 553(b) is impracticable and contrary to the public interest.

Further, the Administrator finds that good cause exists under 5 U.S.C.

553(d) for making this rule effective less than 30 days after

publication in the Federal Register. The Washington, DC area has a

number of critical governmental and national assets. The U.S.

government believes that terrorists still are looking to use general

aviation aircraft to conduct terrorist activity. General aviation is an

attractive means for terrorism because the training period for learning

to fly many of the smaller aircraft is shorter, and security at most

general aviation airports is not as tight as security at commercial

airports. In fact, the FBI issued terrorist alerts in May and July of

2002 regarding small airports. By extending the effective period of

this SFAR, critical national assets will continue to be protected

against an airborne threat while permitting operations at these

airports.

    This action is taken in accordance with the Administrator's

statutory mandate found in section 44701(a)(5) of Title 49, United

States Code (49 U.S.C.) to promote the safe flight of civil aircraft in

air commerce by proscribing regulations and minimum standards necessary

for safety in air commerce and national security. This action is

necessary to permit aircraft operations to resume at the affected

airports while preventing possible hazardous actions directed against

aircraft, persons, and property within the United States. This action

is also being taken pursuant to the statutory authority in 49 U.S.C.

section 40103(b)(3).



International Compatibility



    In keeping with U.S. obligations under the Convention on

International Civil Aviation, it is FAA policy to comply with

International Civil Aviation Organization (ICAO) Standards and

Recommended Practices to the maximum extent practicable. The FAA

determined that there are no ICAO Standards and Recommended Practices

that correspond to this SFAR.



Paperwork Reduction Act



    This final rule contains information collection activities subject

to the Paperwork Reduction Act (44 U.S.C. 3507(d)). In accordance with

the Paperwork Reduction Act, documentation describing the information

collection activities was submitted to the Office of Management and

Budget (OMB) for review and approval, and assigned control number 2120-

0677.

    This rule constitutes a recordkeeping and third party disclosure

burden on persons conducting operations at specific airports in the

Washington, DC area. The respondents are three airports, the State of

Maryland, and persons flying to or from these airports.

    A protection provided by the Paperwork Reduction Act states that an

agency may not conduct or sponsor, and a person is not required to

respond to a collection of information unless it displays a currently

valid OMB control number. As stated above, the OMB control number is

2120-0677.



Economic Analyses



    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 requires agencies to analyze the

economic impact of regulatory changes on small entities. Third, the

Trade Agreements Act (19 U.S.C. sections 2531-2533) prohibits agencies

from setting standards that create unnecessary obstacles to the foreign

commerce of the United States. In developing U.S. standards, this Trade

Act requires agencies to consider international standards and, where

appropriate, to 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.)

    In conducting these analyses, FAA has determined this rule: (1) Has

benefits that justify its costs, 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;

(2) will have a significant economic impact on a substantial number of

small entities; (3) will have no effect on international trade; and

does not impose an unfunded mandate on state, local, or tribal

governments, or on the private sector. These analyses, available in the

docket, are summarized below.



Costs



    The FAA has performed an analysis of the expected costs and

benefits of this SFAR; specific parts of the SFAR resulted in costs

only during its first year, and this analysis will mention them in the

course of discussing the different cost elements. The TSA performed the

analysis for the SFAR's first year; a copy of their final regulatory

evaluation of the economic impacts has been placed in Docket No. FAA-

2002-11580; SFAR 94.

    The FAA was able to obtain limited historical financial and

operational data for College Park and Potomac Field Airports and was

also able to obtain this data for part of their first year under the

SFAR. Additional data restrictions,



[[Page 7687]]



however, limited the analysis of the rule's impact on the Washington

Executive Airport/Hyde Field. Thus, as will be seen below, FAA was

required to make additional assumptions in doing the analysis for this

airport.

    In 2000, approximately 89,000 part 91 operations were conducted

from these airports. The 2001-2002 flight restrictions have caused

significant economic hardship for these airport operators, aircraft

owners and operators based at the airports, and businesses located on,

or dependent upon, the continued operation of the airports.

    To provide a basis for comparison, the operational and financial

data provided by the three airports has been adjusted to reflect full

years of operation. The projected cost of compliance for all three

airports is estimated to be $12.51 million ($11.22 million, discounted)

over the 2 years that the SFAR is in effect. In addition, the cost to

the Federal and state governments sums to approximately $245,800

($220,500, discounted), so that the total cost of this final rule is

$12.76 million ($11.44 million, discounted).



College Park Airport



    The College Park Airport was opened in 1909 and is the oldest

continuously operating airport in the world. With the exception of

about 100 annual air taxi operations, the College Park Airport serves a

combination of private pilots and fliers who use their aircraft to

conduct business. This annualized revenue loss was increased by a

factor of 20% to account for revenues losses not included in the

analysis. Thus, the estimate of losses to College Park Airport

associated with complying with the operational restrictions in SFAR 94

is $1.62 million for each of the 2 years examined by this analysis. In

doing these analyses, the FAA assumes no change in annual revenue per

year.

    The cost to the College Park Airport and its pilots of complying

with the security provisions of this rule will be approximately

$347,700 per year. Security costs, which include airport security

program maintenance, airport security program modification, and airport

physical security provision, sum to $181,500. Security costs for pilots

sum to $166,200 and are based on the ground and in-flight delays.



Potomac Airfield



    The Potomac Airfield is a small privately owned airport located in

Fort Washington, Maryland. Based on information from the first 8 months

of 2002, and assuming that these revenues derived during the period

stay the same for the 2 years examined by this analysis, the FAA

estimates annual revenue loss to be $1.36 million. This annualized

revenue loss was increased by a factor of 20% to account for revenue

losses not included in the analysis. Thus the FAA estimates losses of

$1.63 million for each of the 2 years examined by this analysis.

    The estimated cost to Potomac Airfield Airport and its pilots of

complying with the security provisions of this rule will be

approximately $411,000 over each year that SFAR 94 is in effect.

Security costs, which include airport security program maintenance,

airport security program modification, and airport physical security

provision, sum to $63,100. Security costs for pilots sum to $347,900

and are based on the ground and in-flight delays.



Washington Executive/Hyde Field Airport



    Washington Executive/Hyde Field Airport is a small privately owned

airport located in Clinton, Maryland. The airport largely serves the

needs of private fliers and pilots who occasionally fly for business

reasons. This airport was closed longer than the other two; operations

resumed at Hyde Field on March 2, 2002. However, on May 17, 2002, the

airport was closed again because of a security violation. The airport

reopened on September 28, 2002. For costing purposes, the FAA assumes

that this airport will remain open for the 2 years of the SFAR 94

extension.

    Because the airport had been closed for much of 2002, revenue data

is very sketchy. The FAA was able to obtain information on some

components, such as fuel sales, aircraft storage fees, landing fees,

and miscellaneous sales, but was unable to obtain information on other

components, such as aircraft maintenance, aircraft rental, and avionic

services. Accordingly, the cost of compliance for the Washington

Executive Airport has been adjusted to compensate for the lack of

financial data. To offset this shortcoming, the average of the

estimated costs of the operational restrictions incurred by the two

other airports has been added to the cost of compliance for the

Washington Executive Airport. The similarities in size, operations, and

geographic location of these airports add credibility to the

extrapolation of financial losses. This resulted in the estimate of

losses associated with complying with the operational restrictions of

SFAR 94 for this airport to be $1.52 million for each of the 2 years

examined by this analysis. The FAA does not have historical data on

revenue growth at this airport. Accordingly, the FAA will assume no

annual change in revenue from either the base period or the contrast

period.

    The estimated cost to this airport and its pilots of complying with

the security provisions of this rule will be approximately $641,900

over each year that SFAR 94 is in effect. Security costs, which include

airport security program maintenance, airport security program

modification, and airport physical security provision, sum to $78,600

annually. Security costs for pilots sum to $563,300 annually and are

based on the ground and in-flight delays.



Other Costs



    This rule will impose costs on both Federal and state governmental

agencies, totaling $122,900 per year, which is made up of:

    [sbull] A security specialist at TSA will mandate periodic

modifications to each airport's security procedures as well as check

each airport's compliance with these mandates.

    [sbull] Flight service station specialists will need to file the

flight plans.

    [sbull] An airport inspector at TSA will inspect each airport on a

monthly basis. This inspector will need to liaison with the state

government law enforcement agency involved in the program and will need

to fill out airport inspection forms for each airport inspection.



Benefits



    This final rule is intended to provide an increased level of safety

and security against the threat of airborne terrorist attacks. The

primary benefit of the rule will be enhanced protection for the

vulnerability of a significant number of vital government assets in the

National Capital Region. The temporary security provisions and flight

restrictions contained in this rule are an integral part of the effort

to identify and defeat the threat posed by terrorists.

    For the past two decades, the major goal of aviation security has

been the prevention of in-flight bombings and acts of sabotage. Thus,

the major line of defense against an aviation-related criminal or

terrorist act has been the prevention of an explosive or incendiary

device from getting on board an airplane. The February 1993 attack on

the World Trade Center (WTC) raised public awareness that the scope of

the foreign terrorist threat in the U.S. was more serious and

technically more sophisticated than previously thought. The ensuing

investigation revealed that foreign terrorists operating in the U.S.

are capable of building sophisticated explosive devices and covertly

carrying out their plans. The attacks of September 11, 2001, introduced

the



[[Page 7688]]



specter of terrorists using civil aviation aircraft as a missile

against civilian targets, government control centers, political

targets, and economic, and/or socially prominent assets. This raises

concern regarding the vulnerability of critical government and military

facilities to the threat of terrorism. National security demands that a

terrorist strike within the National Capital Region must be taken into

consideration.

    The experience of the past 30 years combating acts of air piracy

confirms that the losses associated with aircraft bombings and

hijackings are identifiable, measurable, and confined. The cost of a

catastrophic terrorist act against a civilian aircraft can be estimated

in terms of lives lost, property damage, decreased public utilization

of air transportation, etc. A terrorist attack using a weapon of mass

destruction on an urban area would inflict casualties and property

damage on a far greater scale than any act perpetrated against a

commercial aircraft. If successful, the economic impact would be

enormous and in many ways incalculable as demonstrated by the September

11, 2001, attacks, for which the economic costs will not be fully

realized for several years. However, even if such an attack failed,

there would be a direct economic cost of reduced travel and tourism due

to individuals' perceptions of safety and security.

    The rule's objective is to reduce the risk that an airborne

terrorist attack initiated from an airport moments away from vital

national assets will occur. The cost of a major act of terrorism

against a nationally prominent target or critical government

infrastructure is extremely difficult to quantify. Dependent upon the

target and extent of damages, etc., this type of terrorist act would

have far reaching economic consequences and long lasting social and/or

political implications. As such, losses associated with such an act are

virtually impossible to estimate.

    The following analysis describes an attempt at quantifying some of

the elements involved with the impact of a small general aviation

aircraft within the National Capital Region. This is intended to allow

the reader to judge the likelihood of benefits of the rule equaling or

exceeding its cost. The FAA recognizes that such an impact may not

cause substantial damage to property or a large structure; however, it

could potentially result in an undetermined number of fatalities and

injuries and reduced tourism.

    The FAA is unable to predict which target or location such an

aircraft would crash into. In a worst-case scenario, a general aviation

aircraft could be flown into the dome of the Capitol Building. While

the destruction of the aircraft is almost certain, it is not known to

what extent the dome or the building would be damaged. Fatalities and

casualties could number into the thousands in the case of a direct

attack. According to the Capitol Visitor Center website, as many as

18,000 individuals visited the Capitol Building each day during peak

season, and this does not take into account those who work or do

business in the Capitol Building on a daily basis when Congress is in

session. Due to the number of unknowns involved in a terrorist attack

in the National Capital Region, the economic cost due to fatalities,

casualties and property damage are inestimable.

    In addition to casualties and property damage, which are difficult

to quantify, there would be the potential loss of revenue from a

decrease in travel and tourism resulting from a terrorist incident in

the nation's capital. This negative impact that a terrorist attack,

successful or not, would have on tourism is quantifiable. The

heightened state of alert that follows a terrorist strike is typified

by halted public tours, obstructed streets, off limits public

buildings, closed down landmarks, and increased public apprehension.

After the September 11th attacks, tours at the Capitol Building were

curtailed and tourism as a whole declined. A terrorist attack

specifically against the nation's capital would draw significant

national and international media attention. The adverse publicity would

weaken consumer confidence and further discourage travel and tourism to

the Washington, DC Metropolitan area. The U.S. National Park Service

and the District of Columbia Government's Office of Planning and

Economic Development cite that tourism is the number one private sector

Industry in the region. An estimated 22 million visitors come to the

Washington Region each year, and spent, on average, about $116.00 per

person.

    Assuming that each person spends $116 per visit, multiplying this

times 22,000,000 tourist yields $2.552 billion as the annual

contribution visitors make to the Washington, DC economy. Based on the

experience of September 11, 2001, the FAA believes that a decline of

three percent is a conservative estimation as to the decline in overall

tourism. Three percent of the $2.552 billion would result in a $76.56

million decline in revenues to the District of Columbia economy. The

FAA believes that the casualty and property loss added to the estimated

$76.56 million revenue decline from reduced tourism could easily be in

the hundreds of millions of dollars.

    This SFAR was promulgated on February 13, 2002 and will last for 3

years. Accordingly, these benefits need to be applied over this 3-year

period. This analysis looks at the costs and benefits of the SFAR

extension, for the final 2 years of this SFAR, so the benefits

calculations need to be examined for this 2-year period, meaning that

only two-thirds of the $76.56 million can be applied to this rule;

benefits sum to $51.04 million ($45.78 million, discounted); these

benefits assume an equally likely chance that this incident will be

avoided during any time over the 3-year period. The TSA regulatory

evaluation will analyze the benefits for the first year of the SFAR.

    The cost of this rule is estimated to be $12.76 million ($11.44

million, discounted). This cost needs to be compared to the possible

unfortunate consequences that could occur if a terrorist attack using a

small general aviation aircraft is carried out against a public

facility or congested public assembly area located within National

Capital Region. Using conservative assumptions, the FAA estimates that

the costs of an airborne attack could equal $76.56 million in terms of

fatalities, injuries, the destruction of the airplane, and reduced

tourism. Two-thirds of these costs can be counted as the benefits for

this SFAR extension, and they need to be contrasted with the cost of

implementing SFAR 94 for all three airports. The FAA concludes that the

benefits vastly outweigh the costs.



Regulatory Flexibility Determination



    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a

principle of regulatory issuance that agencies shall endeavor,

consistent with the objective of the rule and of applicable statutes,

to fit regulatory and informational requirements to the scale of the

business, organizations, and governmental jurisdictions subject to

regulation.'' To achieve that principle, the RFA requires agencies to

solicit and consider flexible regulatory proposals and to explain the

rationale for their actions. The RFA covers a wide-range of small

entities, including small businesses, not-for-profit organizations and

small governmental jurisdictions.

    Agencies must perform a review to determine whether a proposed or

final rule will have a significant economic impact on a substantial

number of small entities. If the agency determines that it will, the

agency must prepare a regulatory flexibility analysis as described in

the Act. However, if an



[[Page 7689]]



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 1980 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 FAA is not required to provide a regulatory flexibility

analysis for this rulemaking action, because there was not a previous

Notice of Proposed Rulemaking (NPRM). (See ``Justification for

Immediate Adoption,'' above.) The FAA has provided one, however,

because it believes that it is important to show the potential impact

on these entities for completeness.

    For this SFAR, the small entity group is considered to be small

general aviation airports (Standard Industrial Classification Code

[SIC] 4581--Airports, Flying Fields, and Airport Terminal Services).

The small entity size standards criteria used by the FAA in past

analyses involving airports defines a small airport as one with annual

revenues of less than $5 million. In addition, all privately owned,

public-use airports are considered small.

    Three airports are affected by this rule. The College Park Airport

is owned and partially funded by two Maryland Counties, Montgomery and

Prince Georges. The 2000 census discloses that the combined population

of the two counties is approximately 1.7 million. As such, the College

Park Airport is not a small entity. Both the Potomac Airfield Airport

and Washington Executive Airport/Hyde Field are privately owned and

considered small in this analysis.

    As a basis for comparison among small airports, the FAA examined

the revenue base for all Part 139 small airports. Small general

aviation airports are not required to have security programs; only

those airports that have scheduled service are required to have such a

program. Air carrier airports are funded from tax revenues and

generally have greater aviation traffic activity than general aviation

airports and airports without scheduled service. The two small airports

subject to SFAR 94 are not supported from tax revenues, as the revenues

that sustain the two airports are derived solely from the pilots who

use the airports. The estimated annual cost of compliance, based on

known costs and revenues for the Washington Executive Airport is

$290,700 and the burden on the Potomac Airfield Airport is $220,700;

they increase to $333,100 and $252,200 when the anticipated airport

revenue losses are increased by 20%, as discussed above. These costs

are considered burdensome because they are well in excess of one

percent of the median annual revenue of small airport operators (one

percent of the annual median revenue for small operators is $28,000).

Therefore, the FAA has determined that the rule will have a significant

economic impact on a substantial number of small entities.



Regulatory Flexibility Analysis



    Under section 603 (b) of the RFA (as amended), each final

regulatory flexibility analysis is required to address the following

points: (1) Reasons why the FAA considered the rule, (2) the objectives

and legal basis of the rule, (3) the kind and number of small entities

to which the rule will apply, (4) the reporting, record keeping, and

other compliance requirements of the rule, and (5) all Federal rules

that may duplicate, overlap, or conflict with the rule. The FAAA will

perform an analysis for the two small airports impacted by this rule.

    Reasons why the FAA considered the rule--The catastrophic events of

September 11, 2001, introduced the awareness that terrorists will use

civil aviation aircraft as a missile or possible carriers of

biological, chemical, radioactive and/or conventional weaponry against

civilian targets. The airports affected by this rule are located within

a few minutes flight from vital civilian and military control centers.

This final rule recognizes that the terrorist threat is changing and

growing and that extraordinary steps must be taken to safeguard

vulnerable critical national assets and counter the increased threat

level.

    The objectives and legal basis for the rule--The objective of the

rule is to restore operations at the affected airports while attempting

to counter the threat of a possible terrorist airborne attack carried

out against vital national assets located within the National Capital

Region. The Legal basis for the rule is found in 49 U.S.C. 44901 et

seq. Both the FAA and the TSA must consider, as a matter of policy,

maintaining and enhancing safety and security in air commerce as its

highest priorities (49 U.S.C. 40101(d)).

    The kind and number of small entities to which the rule will

apply--The rule applies to two small general aviation airports subject

to SFAR 94. Private fliers and some pilots who occasionally operate

their aircraft for business reasons use the two airports.

    The reporting, record keeping, and other compliance requirements of

the rule--As required by the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d)), the FAA has submitted a copy of these sections to the Office

of Management and Budget (OMB) for its review:

    Paragraph 4.--Airport Security procedures, Subparagraph (a)

requires the two airports to modify or submit the security procedures

program at the request of the TSA as well as maintain their security

program. The cost and time required for these activities is estimated

to be $672 at Potomac, taking 16 hours, and $600 at Washington

Executive/Hyde, taking 15 hours for a total of $1,272, taking 31 hours.

    All Federal rules that may duplicate, overlap, or conflict with the

rule--The FAA is unaware of any Federal rules that duplicate, overlap,

or conflict with this rule.



Other Considerations



    Affordability analysis--The extent to which a small airport can

``afford'' the cost of compliance is directly related on the

availability of income and earnings. The small airports subject to this

rule generate income to sustain their operations from landing fees,

tie-down charges, rent and other compensation paid by airport tenants,

fuel sales, flight school instruction, sightseeing rides, aircraft

rentals, and miscellaneous local sales. All of these sources of income

are influenced directly by the number of operations at the airport. The

reduction in operations experienced by the airports as a consequence of

the flight restrictions in place before and after this rule became

effective is significant.

    The decrease in operations corresponds directly to the decline in

working capital at the airports. Working capital is defined as the

excess of current assets over current liabilities. The financial

strength and viability of a business entity's financial strength is

substantially influenced by its working capital position and its

ability to meet its short-term liabilities. As fixed-base operator and

pilots have relocated to other airfield, revenues have continued to

decline. Besides laying-off staff, without other sources of revenue,

the airports are unable to implement offsetting cost-saving

efficiencies that could ameliorate the loss of income.

    At this time, there is no comprehensive source of information

available that would account for a total financial picture of these

airports. There is also no information about the airports' ability to

obtain credit. The only evidence is limited to the fact that the

airport and its tenants generated revenues in previous years and were

able to pay their taxes. As such, it can



[[Page 7690]]



be assumed that these small entities were generating sufficient

revenues to meet tax and other obligations; however, the costs of

complying with SFAR 94 are very high relative to the current revenues

reported by the airports. As discussed in more detail in the full

analysis, the security costs alone are more than 20 percent of the

projected revenues, $63,100 out of total airport revenue of $259,000 at

Potomac and $78,600 out of total airport revenue of $291,300 at

Washington Executive Airport/Hyde Field.

    The financial impact of the flight restrictions in place before the

effective date of SFAR 94 is significant relative to the size of these

airports. The reopening of the airports has not improved the financial

posture of the airports. The May 17, 2002 temporary closing again of

Washington Executive Airport/Hyde Field imperiled the survival of this

airport. The complex and burdensome flight restrictions now in place

are intimidating and have caused many private pilots to relocate to

other airports. On the basis of the above, the FAA considers that the

rule will threaten the viability of the impacted airports.

    Competitiveness analysis--Airports located further away from the

DCA VOR/DME are not subject to the security provisions and air traffic

restrictions now in effect for College Park Airport, Potomac Airfield

Airport, and Washington Executive Airport/Hyde Field. These airports

offer a convenient alternative location for pilots seeking to avoid

costly operational restrictions and security requirements. The

availability of these airports has contributed to reducing the

competitiveness of the affected airports. Pilots flying into the

airports covered by this SFAR face additional costs in filing flight

plans which they would not have at alternative airport; these costs sum

to $347,900 annually ($33.13 per operation) at Potomac and $563,300

annually ($33.14 per operation) at Washington Executive Airport/Hyde

Field.

    Business Closure--The FAA is unable to determine with certainty

whether the two small airports significantly impacted by this rule will

remain open. On the basis of the Affordability Analysis provided above,

the FAA considers that the rule will threaten the viability of the

impacted airports.



Alternatives



    This rule was brought about by the need to restore operations at

the affected airports while providing increased protection against the

threat of a terrorist strike to the Nation's capital. The FAA found

that the urgent need to provide relief made the use of advance notice

impractical and contrary to public interests. The fact that the rule is

in effect reduces the number of options to be examined in this

analysis; meanwhile, the FAA and the TSA are considering all comments

and reviewing other alternatives. Moreover, both agencies believe that

any change to the security requirements or air traffic restrictions

would be the equivalent of revoking the rule and increasing the

vulnerability of the National Capital Region. Thus, the FAA has

examined the following three alternatives.

    Alternative 1--Rescind the rule immediately--This alternative would

provide immediate relief to the airports by removing security

provisions and restoring former air traffic control procedures and air

space configurations. Implementation of this alternative would

facilitate the return of pilots who, for the sake of operating

simplicity and reduced flying costs, relocated to other airports. This

would be the least costly option. The FAA believes that the threat of

terrorists using aircraft as missiles must be guarded against. This

makes this regulation necessary until such time that this threat is

neutralized.

    Conclusion: Rescinding the rule would increase the vulnerability

and diminish the level of protection now in place to safeguard vital

national assets located within the National Capital Region. This

alternative is rejected because it would compromise the security of

vital national assets and increase their vulnerability.

    Alternative 2--Status Quo--Under this alternative, the FAA and TSA

would maintain the present security and air traffic operational

restrictions. The annual cost of compliance for the affected airports

totals $511,400; they increase to $585,400 when the anticipated airport

revenue losses are increased by 20% The rule ensures that any aircraft

operating to and from the affected airports and transiting the

restricted area specified in the SFAR has been properly identified and

cleared.

    Conclusion: This alternative is preferred because it balances the

security concerns against the impact on the three airports and related

businesses.

    Alternative 3--Close Airports Permanently--Under this alternative,

the FAA would completely close the three airports to all aviation

operations. This would effectively close all aviation-related

businesses at or near the affected airports. They would be forced to

move to other airports or close their businesses permanently. All

pilots who have aircraft permanently based at the airports would also

be forced to move their aircraft to other locations, thereby imposing

moving costs, including new hanger, tie-down, storage fees, etc.

Workers at the airports would be forced to seek employment at one of

the other general aviation airports in the Washington Metro area. This

is the most costly option.

    Conclusion: This alternative is not preferred because it causes the

greatest financial burden on the airports, their tenants and aviation-

related businesses, and individuals who work or store aircraft at the

three affected airports.



International Trade Impact Statement



    The Trade Agreement Act of 1979 prohibits Federal agencies from

engaging in any standards or related activities that create unnecessary

obstacles to the foreign commerce of the United States. Legitimate

domestic objectives, such as safety, are not considered unnecessary

obstacles. The statute also requires consideration of international

standards and where appropriate, that they be the basis for U.S.

standards. In addition, consistent with the Administration's belief in

the general superiority and desirability of free trade, it is the

policy of the Administration to remove or diminish to the extent

feasible, barriers to international trade, including both barriers

affecting the export of American goods and services to foreign

countries and barriers affecting the import of foreign goods and

services into the United States.

    In accordance with the above statute and policy, 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 any

trade-sensitive activity.



Executive Order 13132, Federalism



    The FAA has analyzed this rule under the principles and criteria of

Executive Order 13132, Federalism. The FAA has 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. Therefore, we have determined that this final rule does not

have Federalism implications.



Unfunded Mandates Reform Act



    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub.

L. 104-4 on March 22, 1995 is intended, among other things, to curb the

practice of imposing unfunded Federal mandates on State, local, and

tribal governments. Title II of the Act requires each Federal



[[Page 7691]]



agency to prepare a written statement assessing the effects of any

Federal mandate in a proposed or final agency rule that may result in a

$100 million or more expenditure (adjusted annually for inflation) in

any one year by State, local, and tribal governments, in the aggregate,

or by the private sector; such a mandate is deemed to be a

``significant regulatory action.''

    This rule does not contain such a mandate. Additionally, the

requirements of Title II of the Unfunded Mandates Reform Act of 1995 do

not apply when no notice of proposed rulemaking has first been

published. Accordingly, the FAA has not prepared a statement under the

Act.



Environmental Analysis



    FAA Order 1050.1D defines FAA actions that may be categorically

excluded from preparation of a National Environmental Policy Act (NEPA)

environmental impact statement. In accordance with FAA Order 1050.1D,

appendix 4, paragraph 4(j) this rulemaking action qualifies for a

categorical exclusion.



Energy Impact



    The energy impact of this SFAR has been assessed in accordance with

the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as

amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined

that this SFAR is not a major regulatory action under the provisions of

the EPCA.



List of Subjects in 14 CFR Part 91



    Air traffic control, Aircraft, Airmen, Airports, Aviation safety,

Security.



The Amendment



    For the reasons stated in the preamble, the Federal Aviation

Administration amends 14 CFR chapter I as follows:



PART 91--GENERAL OPERATING AND FLIGHT RULES



    1. The authority citation for part 91 continues to read as follows:



    Authority: 49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 40101,

44111, 44701, 44709, 44711; 44712, 44715, 44716, 44717, 44722,

46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531,

articles 12 and 29 of the Convention on International Civil Aviation

(61 stat. 1180).



    2. Amend Special Federal Aviation Regulation (SFAR) No. 94 by

revising section 7 to read as follows:

SFAR NO. 94--ENHANCED SECURITY PROCEDURES FOR OPERATIONS AT CERTAIN

AIRPORTS IN THE WASHINGTON, DC METROPOLITAN AREA SPECIAL FLIGHT RULES

AREA

* * * * *

    7. Expiration. This Special Federal Aviation Regulation shall

remain in effect until February 13, 2005.



    Issued in Washington, DC on February 11, 2003.

Marion C. Blakey,

Administrator.

[FR Doc. 03-3777 Filed 2-12-03; 9:25 am]

BILLING CODE 4910-13-P