[Federal Register: November 21, 2008 (Volume 73, Number 226)]
[Rules and Regulations]
[Page 70591-70592]
[DOCID:fr21no08-4]

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

14 CFR Part 254

RIN 2105-AD80
[Docket DOT-OST-2008-0332]

Domestic Baggage Liability

AGENCY: Department of Transportation (DOT), Office of the Secretary
(OST).

ACTION: Final rule.

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SUMMARY: In accordance with Department of Transportation regulations,
this final rule raises the minimum limit on domestic baggage liability
applicable to air carriers to reflect inflation since July 2006, the
basis month of the most recent previous revision to the liability
limit. Regulations require that the Department of Transportation
periodically revise the limit to reflect changes in the Consumer Price
Index for All Urban Consumers. This revision adjusts the minimum limit
of liability from the current amount of $3,000 announced by the
Department in January 2007 to $3,300, to take into account the changes
in consumer prices since the prior revision.

DATES: Effective Date: This rule is effective on December 22, 2008.

FOR FURTHER INFORMATION CONTACT: Tim Kelly, Aviation Consumer
Protection Division, Office of the General Counsel, Department of
Transportation, 1200 New Jersey Ave., SE., Washington, DC 20590, 202-
366-5952 (voice),<PHONE_NUMBER> (fax<EMAIL_ADDRESS>(e-mail).

SUPPLEMENTARY INFORMATION:

I. Revision of Liability Limit

    Part 254 of the Department's rules (14 CFR Part 254) establishes
minimum baggage liability limits applicable to domestic air service.
Section 254.6 of this rule calls for the Department to periodically
review the minimum limit of liability prescribed in Part 254 in light
of changes in the Consumer Price Index for All Urban Consumers (CPI-U)
and to revise the limit of liability to reflect changes in that index
as of July of each review year. Section 254.6 prescribes the use of a
specific formula to calculate the revised minimum liability amount when
making these periodic adjustments. Applying the formula to price index
changes occurring between July 2006 and July 2008, the appropriate
inflation adjustment is $2,500 x 219.96/168.30 [$2,500 x 1.30695],
which yields $3,267.38. (The base amount of $2,500 in the formula was
the minimum liability limit in Part 254 at the time that this biannual
indexing provision was added to the rule, 219.96 is the CPI-U for July
2008, and 168.30 is the CPI-U for 1999.) Section 254.6 requires us to
round the adjustment to the nearest $100, or to $3,300 in this case.
    We are also making an editorial clarification to the text
describing the ``b'' in the formula in section 254.6. This text says
that the ``b'' value in the a/b calculation is to be the ``most current
CPI-U figure when final rule is issued.'' The ``final rule'' referenced
here is the 1999 rule that set the limit at $2,500 and added this
inflation adjustment procedure. The ``b'' number is therefore the CPI-U
figure at the time the 1999 rule was issued. However, the language in
note ``b'' may be subject to misinterpretation since this is a nine-
year-old number (at the present time) and yet the text identifies ``b''
as the ``most current'' CPI figure. The text does not specify clearly
which final rule is being referred to--the 1999 rule that added the
inflation adjustment procedure or the most recent inflation revision,
although the preamble of the 1999 rule was clear with regard to intent
and the two revisions since then applied the formula in line with that
intent. Consequently, we are revising the text describing ``b'' to read
``b = the CPI-U figure in December 1999 when the inflation adjustment
provision was added to Part 254.'' This is merely an editorial
clarification and does not change the calculation of the liability
limit.

II. Waiver of Rulemaking Procedural Requirements

    With this final rule, we are waiving the usual notice of proposed
rulemaking and public comment procedures set forth in the
Administrative Procedure Act (APA) (5 U.S.C. 553). The APA allows
agencies to dispense with such procedures on a finding of good cause
when they are impracticable, unnecessary or contrary to the public
interest. We have determined that under 5 U.S.C. 553 (b)(3)(B) good
cause exists for dispensing with the notice of proposed rulemaking and
public comment procedures for this rule. This rulemaking is required by
the terms of 14 CFR 254.6, as most recently amended in December 1999
(64 FR 70575, December 17, 1999) and is simply a ministerial inflation
update based on a formula. In addition, the editorial revision noted
above involves no substantive change. Accordingly, we find that prior
notice and comment are unnecessary and contrary to the public interest,
and we are issuing these revisions as a final rule.
    Although this final rule will become effective on December 22,
2008, in order to avoid imposing an undue burden, the Department will
defer enforcement of the notice provision in the rule (section 254.5)
as it pertains to printed notices about the new limit for a reasonable
time period to allow carriers to replace or update their current paper
ticket stock and ticket jackets or inserts. Electronic notices about
the minimum domestic liability limit, including notices that are
printed ``on demand'' from an electronic source (e.g., Web sites, e-
mail messages, and airport kiosks) should be updated no later than the
effective date of this final rule. Carriers are subject to enforcement
action from the effective date of this final rule if they fail to
provide notice of the new minimum liability limit in the manner
described above, or if they fail to apply the new limit.

III. Regulatory Impact Statement

Executive Order 12866

    This final rule has been evaluated in accordance with existing
policies and procedures and is considered not significant under both
Executive Order 12866 and DOT's Regulatory Policies and Procedures. The
rule has not been reviewed by the Office of Management and Budget (OMB)
under Executive Order 12866. The provisions are required by current
regulatory language, without interpretation.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires
an assessment of the impact of proposed and final rules on small
entities unless the agency certifies that the proposed regulation will
not have a significant economic impact on a substantial number of small
entities. This revision of 14 CFR Part 254 provides for a periodic
inflation adjustment to the amount of the minimum limit on baggage
liability that air carriers may incur in cases of mishandled baggage.
It will pose minor additional costs only in those instances in which
carriers lose, damage or delay baggage and where the amount of the
passenger's claim in those instances exceeds the old minimum liability
limit of $3,000. The maximum potential impact in those instances is
$300 on each such claim. Reports filed each month with the Department
by airlines that each account for at least one percent of total
domestic scheduled-service passenger revenues show that, at the present
time, less than five percent of all domestic passengers experience a
mishandled bag. That percentage has been trending downward throughout
this year, possibly as a result of fees for checked bags imposed by
many airlines beginning this year. Most of the instances of mishandled
baggage represented in the reports to DOT do not result in a claim in
an amount that is affected by the liability limit in this rule. In
addition, this revision affects only flight segments operated with
large aircraft and other flight segments appearing on the same ticket
as a large-aircraft segment. As a result, many operations of small
entities, such as air taxis and many commuter air carriers, are not
covered by the rule. Moreover, any additional costs for small entities
associated with the rule should be minimal and may be covered by
insurance. Accordingly, we certify that this action will not have a
significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

    This final rule imposes no new reporting or recordkeeping
requirements necessitating clearance by OMB.

List of Subjects in 14 CFR Part 254

    Air carriers, Administrative practice and procedure, Consumer
Protection, Department of Transportation.

0
Accordingly, the Department of Transportation amends 14 CFR part 254 as
follows:

PART 254--DOMESTIC BAGGAGE LIABILITY

0
1. The authority citation for part 254 continues to read as follows:

    Authority: 49 U.S.C. 40113, 41501, 41504, 41510, 41702 and
41707.

Sec.  254.4  [Amended]

0
2. Section 254.4 is amended by removing ``$3,000'' and adding
``$3,300'' in its place.

Sec.  254.5  [Amended]

0
3. Section 254.5(b) is amended by removing ``$3,000'' and adding
``$3,300'' in its place.
0
4. Section 254.6 is amended by revising the last sentence in the
formula to read as follows:

Sec.  254.6  Periodic adjustments.

* * * * *
    b = the CPI-U figure in December 1999 when the inflation adjustment
provision was added to Part 254.

    Issued in Washington, DC on November 14, 2008.
Michael W. Reynolds,
Acting Assistant Secretary for Aviation and International Affairs.
 [FR Doc. E8-27772 Filed 11-20-08; 8:45 am]

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[Federal Register: July 20, 2010 (Volume 75, Number 138)]
[Proposed Rules]
[Page 42015-42017]
[DOCID:fr20jy10-21]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 91

[Docket No.: FAA-2010-0289; SFAR No. 110]
RIN 2120-AJ69

Prohibition Against Certain Flights Within the Territory and
Airspace of Afghanistan; Supplemental Regulatory Flexibility Analysis

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Proposed rule; Notice of availability and request for comments.

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SUMMARY: This document announces the availability of and request for
comments on the Supplemental Regulatory Flexibility Analysis for the
previously published proposed rule entitled, Prohibition Against
Certain Flights Within the Territory and Airspace of Afghanistan.

DATES: Comments must be received on or before August 4, 2010.

ADDRESSES: You may send comments identified by Docket Number FAA-2010-
0289 using any of the following methods:
     Federal eRulemaking Portal: Go to http://
www.regulations.gov and follow the online instructions for sending your
comments electronically.
     Mail: Send comments to Docket Operations, M-30; U.S.
Department of Transportation, 1200 New Jersey Avenue, SE., Room W12-
140, West Building Ground Floor, Washington, DC 20590-0001.
     Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building Ground Floor at 1200
New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays.
     Fax: Fax comments to Docket Operations at<PHONE_NUMBER>.
    For more information on the rulemaking process, see the Additional
Information section of this document.
    Privacy: We will post all comments we receive, without change, to
http://www.regulations.gov, including any personal information you
provide. Using the search function of the docket Web site, anyone can
find and read the electronic form of all comments received into any of
our dockets, including the name of the individual sending the comment
(or signing the comment for an association, business, labor union,
etc.). You may review DOT's complete Privacy Act Statement in the
Federal Register published on April 11, 2000 (65 FR 19477-78) or you
may visit http://DocketsInfo.dot.gov.
    Docket: To read background documents or comments received, go to
http://www.regulations.gov at any time and follow the online
instructions for accessing the docket or Docket Operations in Room W12-
140 of the West Building Ground Floor at 1200 New Jersey Avenue, SE.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Michael Lukacs, APO-300, Federal
Aviation Administration, 800 Independence Ave., SW., Washington, DC
20591; telephone number:<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: Later in this preamble under the Additional
Information section, we discuss how you can comment on this action and
how we will handle your comments. Included in this discussion is
related information about the docket, privacy, and the handling of
proprietary or confidential business information. We also discuss how
you can get a copy of related rulemaking documents.

Background

    On May 26, 2010, the FAA published in the Federal Register the
Notice of Proposed Rulemaking (NPRM) entitled Prohibition Against
Certain Flights Within the Territory and Airspace of Afghanistan.\1\
The comment period for the NPRM closed on June 10, 2010. The FAA
received several comments about the agency's economic assessment of the
proposed rule. Specifically, some commenters did not agree with the
FAA's determination that the NPRM would not have a significant economic
impact on a substantial number of small entities. To address these
concerns, the FAA is publishing the below Supplemental Regulatory
Flexibility Analysis for comment.
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    \1\ Prohibition Against Certain Flights Within the Territory and
Airspace of Afghanistan: 75 FR 29466; May 26, 2010.
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Supplemental Regulatory Flexibility Analysis

    The Regulatory Flexibility Act 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, 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.
    Based on the comments received following publication of the NPRM,
we have re-evaluated our certification under the RFA that the proposed
rule will not, if promulgated, have a significant economic impact on a
substantial number of small entities. Based on our re-evaluation, we
have determined that the proposed rule will, if promulgated, have a
significant economic impact on a substantial number of small entities.
Consequently, we have completed a Supplemental Regulatory Flexibility
Analysis and request comments from affected small entities. The purpose
of this analysis is to identify the number of small entities affected,
assess the economic impact of the proposed regulation on them, and
consider less burdensome alternatives and still meet the agency's
statutory objectives. Under Section 603(b) and 603(c) of the RFA, the
analysis must address:
    1. A description of the reasons why the action by the agency is
being considered.
    2. A succinct statement of the objectives of, and legal basis for,
the proposed rule.
    3. A description--and, where feasible, an estimate of the number--
of small entities to which the proposed rule will apply.
    4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the types of professional skills necessary for
preparation of the report or record.
    5. An identification, to the extent practicable, of all relevant
federal rules that may duplicate, overlap, or conflict with the
proposed rule.
    6. Significant alternatives.
    1. Description of the reasons why the action by the agency is being
considered.
    This action would permit certain U.S. civil flight operations below
flight level (FL) 160 within the territory and airspace of Afghanistan,
when approved by the FAA or when authorized by exemption by the FAA.
Otherwise, flight operations below FL 160 within the territory and
airspace of Afghanistan would be prohibited for all U.S. air carriers;
U.S. commercial operators; persons exercising the privileges of a U.S.
airman certificate, except when that person is operating a U.S.-
registered aircraft for a foreign air carrier; and operators of U.S.-
registered aircraft, except when such operators are foreign air
carriers.
    The FAA is considering this action because insurgent activity in
Afghanistan has increased and threatens the safety of U.S. civil
aircraft and operators operating within Afghan airspace and overflying
the territory of Afghanistan. This insurgent activity has adversely
affected the safety of airfield operations for these flights. The
Afghan insurgents, armed with various weapons, pose a serious threat to
U.S. civil aircraft and operators at local airports and to these
aircraft on approach to and departing from these airports. Insurgents
with small arms fire capabilities have been targeting airfields with
rockets and have fired on aircraft at these airfields. While U.S. civil
aircraft have not yet specifically been targeted, there have been
several reported events of these aircraft being hit by small arms fire.
Also, foreign civil aircraft that support the North Atlantic Treaty
Organization (NATO) have been shot down by small arms and rocket-
propelled grenade fire.
    2. Objectives and legal basis for the proposed rule.
    The FAA is responsible for the safety of flight in the United
States and for the safety of U.S.-registered aircraft and U.S.
operators throughout the world. Also, the FAA is responsible for
issuing rules affecting the safety of air commerce and national
security. The FAA's authority to issue the rules on aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section
106(g), describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. Section 40101(d)(1) provides that the Administrator shall
consider in the public interest, among other matters, assigning,
maintaining, and enhancing safety and security as the highest
priorities in air commerce. Section 40105(b)(1)(A) requires the
Administrator to exercise his authority consistently with the
obligations of the United States Government under international
agreements. Further, the FAA has broad authority under section
44701(a)(5) to prescribe regulations governing the practices, methods,
and procedures the Administrator finds necessary for safety in air
commerce and national security.
    The FAA finds the proposed rule necessary to prevent a potential
hazard to persons and aircraft engaged in Afghanistan flight
operations. The nature of the hazard that the FAA seeks to address is
described in the preceding section, ``Description of the reasons why
the action by the agency is being considered.''
    3. Description and Estimate of small entities.
    There are currently no operational restrictions in Afghanistan. The
proposed rule would affect U.S. operators, operators of U.S.-registered
aircraft (except foreign air carriers), and U.S-certificated airmen
(except those U.S. certificated airmen engaged in the operation of
U.S.-registered aircraft for foreign air carriers) who operate in
Afghanistan below FL 160.
    In view of the threat escalation in the territory and airspace of
Afghanistan, and in furtherance of the FAA Administrator's
responsibilities to promote the safe flight of U.S. civil aircraft in
air commerce and to issue aviation rules in the interest of national
security of the United States, the Administrator has determined that
the potential hazard to U.S-registered aircraft and U.S.-certificated
airmen must be mitigated. Therefore, the FAA proposes to issue an SFAR
to restrict flight below FL 160 within the airspace and territory of
Afghanistan, except in compliance with the procedures set forth in the
proposed rule.
    We expect as many as 25 small entities would seek authorization
from the FAA to operate in Afghanistan under this proposed rule.
Depending on the characteristics of the existing flight operations, the
number of flights could be affected. The operators currently operating
are all-cargo, and all have less than 1,500 employees. Generally, these
operators provide niche market services and have available capacity to
provide military support. We are unable from the comments we received
to the NPRM to determine the magnitude of the economic impact of the
proposed rule on these operators. Separately, we are also unable to
document and publish the revenue and number of operations per operator.
    4. Compliance requirements.
    The proposed rule would allow flights below FL 160 in the territory
or airspace of Afghanistan only with the approval of the FAA or by an
exemption issued by the FAA. The required documentation for the
affected entities to be in compliance with this proposed rule would
take each operator one hour to

fill out, endorse and file the required paperwork. As such, the cost
for a one-year period would be $94 (1 hour x $94 per hour).
    In addition to the paperwork that would be required as a result of
this proposal, it is expected that some flight operations would not be
authorized. Without authorization from the FAA to conduct these
flights, the operator's inability to conduct such operations would
result in a significant economic impact.
    The FAA has used Department of Transportation Form 41 data for the
total operating revenue per flight for international cargo operations
of U.S. Operators. In 2009, the reported median revenue estimate was
approximately $70,000 per flight, although the profit would be
substantially less. As the number of flights currently operating would
continue for the foreseeable future, operators who eliminate flights as
a result of the proposed rule would incur a significant economic loss.
The proposal would affect ``more than just a few'' operators who fly in
Afghanistan. As such, we believe flights would be eliminated for a
substantial number of operators.
    The requirements of this proposal would have a significant economic
impact on a substantial number of small entities.
    5. Relevant federal rules that may duplicate, overlap, or conflict
with the proposed rule.
    The FAA is unaware that the rule would overlap, duplicate, or
conflict with existing federal rules.
    6. Significant Alternatives Considered.
    Maintain the status quo: Continue to allow all flights to occur
without requiring steps to manage the risks to these operations from
insurgent activity or an approval or exemption from the FAA.
    The FAA is responsible for both the safety of flight in the United
States and for the safety of U.S.-registered aircraft and U.S.
operators throughout the world. The FAA rejected this alternative and
has not identified any significant alternatives to the proposed rule
which accomplish the stated objectives of applicable statutes and which
minimize any significant economic impact of the proposed rule on small
entities.
    The FAA has determined that the proposed rule would have a
significant economic impact on a substantial number of small entities.
Therefore, we have prepared the above Supplemental Regulatory
Flexibility Analysis. We solicit comments on this determination. We
also solicit comments on the analysis of the number of small entities
that would be affected, the economic impact of the proposed regulation
on these small entities, and whether there are any less burdensome
alternatives that still meet the agency's statutory objectives.

Additional Information

Comments Invited

    The FAA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. The most
helpful comments will reference a specific portion of the Supplemental
Regulatory Flexibility Analysis or related rulemaking document, explain
the reason for any recommended change, and include supporting data. To
ensure the docket does not contain duplicate comments, please submit a
single copy of your written or electronic comments only one time.
    All comments we receive will be filed in the docket, as well as a
report summarizing each substantive public contact with FAA personnel
concerning the proposed rulemaking. Before acting on the proposal, we
will consider all comments we receive on or before the closing date for
comments. We will consider comments filed after the comment period has
closed if it is possible to do so without incurring expense or delay.
We may make changes to the proposal in light of the comments we
receive.

Proprietary or Confidential Business Information

    Do not file in the docket information that you consider to be
proprietary or confidential business information. Send or deliver this
information directly to the person identified in the FOR FURTHER
INFORMATION CONTACT section of this document. You must mark the
information that you consider proprietary or confidential. If you send
the information on a disk or CD-ROM, mark the outside of the disk or
CD-ROM and also identify electronically within the disk or CD-ROM the
specific information that is proprietary or confidential.
    Under 14 CFR 11.35(b), when we are aware of proprietary information
filed with a comment, we do not place it in the docket. We hold it in a
separate file to which the public does not have access, and we place a
note in the docket that we have received it. If we receive a request to
examine or copy this information, we treat it as any other request
under the Freedom of Information Act (5 U.S.C. 552). We process such a
request under the DOT procedures found in 49 CFR part 7.

Availability of Rulemaking Documents

    You can get an electronic copy of rulemaking documents using the
Internet by--
    1. Searching the Federal eRulemaking Portal (http://
www.regulations.gov);
    2. Visiting the FAA's Regulations and Policies web page at http://
www.faa.gov/regulations_policies; or
    3. Accessing the Government Printing Office's web page at http://
www.gpoaccess.gov/fr/index.html.
    You can also get a copy by sending a request to the Federal
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling<PHONE_NUMBER>. Make
sure to identify the docket or SFAR number of this rulemaking.
    You may access all documents the FAA considered in developing the
proposed rule, including economic analyses and technical reports, from
the internet through the Federal eRulemaking Portal referenced in
paragraph (1).

    Issued in Washington, DC, on July 15, 2010.
Pamela Hamilton-Powell,
Director, Office of Rulemaking.
[FR Doc. 2010-17762 Filed 7-19-10; 8:45 am]
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