[Federal Register: November 10, 2004 (Volume 69, Number 217)]
[Proposed Rules]
[Page 65257-65291]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10no04-34]
[[Page 65257]]
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Part II
Department of Homeland Security
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Transportation Security Administration
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49 CFR Part 1540 et al.
Air Cargo Security Requirements; Proposed Rule
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1540, 1542, 1544, 1546 and 1548
[Docket No. TSA-2004-19515]
RIN 1652-AA23
Air Cargo Security Requirements
AGENCY: Transportation Security Administration (TSA), Department of
Homeland Security (DHS).
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Transportation Security Administration (TSA), an agency
within the Department of Homeland Security's Border and Transportation
Security Directorate, proposes to amend current transportation security
regulations to enhance and improve the security of air cargo
transportation. The Aviation and Transportation Security Act directed
TSA to implement measures to enhance the security of air cargo
transported in both passenger and all-cargo aircraft. In discharging
this responsibility, TSA conducted analyses of internal and external
threats, risk and vulnerability assessments, and security measures
already in place. This proposed rulemaking would require the adoption
of security measures throughout the air cargo supply chain; these
security measures will be applicable to airport operators, aircraft
operators, foreign air carriers, and indirect air carriers. These
proposed regulatory requirements would impose significant barriers to
terrorists seeking to use the air cargo transportation system for
malicious purposes.
This proposal would also change the applicability of the
requirement for a ``twelve-five'' security program from aircraft with a
maximum certificated takeoff weight ``of 12,500 pounds or more'' to
those with a maximum certificated takeoff weight of ``more than 12,500
pounds.'' This change would conform the regulation to recent
legislation.
DATES: Send your comments on or before January 10, 2005.
ADDRESSES: You may submit comments, identified by the TSA docket
number, to this rulemaking using any one of the following methods:
Comments Filed Electronically: You may submit comments through the
docket Web site at http://dms.dot.gov. Please be aware that 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 the applicable Privacy Act
Statement published in the Federal Register on April 11, 2000 (65 FR
19477), or you may visit http://dms.dot.gov.
You also may submit comments through the Federal eRulemaking portal
at http://www.regulations.gov.
Comments Submitted by Mail, Fax, or In Person: Address or deliver
your written, signed comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001; Fax: 202-493-2251.
Comments that include trade secrets, confidential commercial or
financial information, or sensitive security information (SSI) should
not be submitted to the public regulatory docket. Please submit such
comments separately from other comments on the proposed rule. Comments
containing trade secrets, confidential commercial or financial
information, or SSI should be appropriately marked as containing such
information and submitted by mail to the individual listed in FOR
FURTHER INFORMATION CONTACT.
Reviewing Comments in the Docket: You may review the public docket
containing comments in person in the Dockets Office between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The Dockets
Office is located on the plaza level of the NASSIF Building at the
Department of Transportation address above. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Tamika McCree, Transportation Security
Administration, Office of Transportation Security Policy (TSA-9), 601
South 12th Street, Arlington, Virginia, 22202, (571-227-2632),
tamika.mccree@dhs.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The TSA invites interested persons to participate in this
rulemaking by submitting written comments, data, or views. We also
invite comments relating to the economic, environmental, energy, or
federalism impacts that might result from adopting the proposals in
this document. See ADDRESSES above for information on where to submit
comments.
With each comment, please include your name and address, identify
the docket number at the beginning of your comments, and give the
reason for each comment. The most helpful comments reference a specific
portion of the proposal, explain the reason for any recommended change,
and include supporting data. You may submit comments and material
electronically, in person, or by mail as provided under ADDRESSES, but
please submit your comments and material by only one means. If you
submit comments by mail or delivery, submit them in two copies, in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you want TSA to acknowledge receipt of your comments on this
rulemaking, include with your comments a self-addressed, stamped
postcard on which the docket number appears. We will stamp the date on
the postcard and mail it to you.
Except for comments containing confidential information and SSI, we
will file in the public docket all comments we receive, as well as a
report summarizing each substantive public contact with TSA personnel
concerning this rulemaking. The docket is available for public
inspection before and after the comment closing date.
We will consider all comments we receive on or before the closing
date for comments. We will consider comments filed late to the extent
practicable. We may change this rulemaking in light of the comments we
receive.
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) Accessing the Government Printing Office's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html
; or
(3) Visiting the TSA's Law and Policy web page at http://www.tsa.dot.gov/public/index.jsp
.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Abbreviations and Terms Used in This Document
ACSSP--Air Carrier Standard Security Program
ASAC--Aviation Security Advisory Committee
ATSA--Aviation and Transportation Security Act
CBP--U.S. Customs and Border Protection
[[Page 65259]]
C-TPAT--Customs-Trade Partnership Against Terrorism
DHS--Department of Homeland Security
DOT--Department of Transportation
DSIP--Domestic Security Integration Program
EA--Emergency Amendment
FAA--Federal Aviation Administration
IAC--Indirect Air Carrier
IACSSP--Indirect Air Carrier Standard Security Program
IC--Information Circular
SD--Security Directive
SIDA--Security Identification Display Area
SSI--Sensitive Security Information
TSA--Transportation Security Administration
Outline of Notice of Proposed Rulemaking:
I. Background
II. Efforts Leading to the Development of This NPRM
A. The Aviation Security Advisory Committee
B. Air Cargo Security Strategic Plan
C. TSA-CBP Air Cargo Coordination
III. Summary of the Rulemaking
A. Who is affected by this NPRM?
B. Why is this regulatory change necessary?
C. How did TSA enhance cargo security after September 11, 2001?
D. What would this proposed rulemaking do to strengthen the
current air cargo security regulatory regime?
E. How will TSA enforce compliance?
F. Did TSA invite recommended changes?
G. Were other solutions considered and why were these proposals
chosen over others?
IV. Summary of Proposed Amendments
A. Current regulation of aircraft operators and foreign air
carriers
B. Security Threat Assessments for Air Cargo Workers
C. Security Measures for Persons Boarding an All-cargo Aircraft
D. Screening Cargo
E. Securing the Cargo Operating Environment
F. Accepting Cargo from Comparable Entities
G. Known Shipper Program
H. Establish All-Cargo Operator Standard Security Program
I. Strengthen Foreign Aircraft Operator Security Measures
J. Enhancing Existing Requirements for IACs
K. Establishing New Training and Personnel Requirements
V. Section-by-Section Analysis of Proposed Changes
VI. Compliance Schedule
VII. Fee Authority for the Security Threat Assessment
VIII. Regulatory Evaluation Summary
IX. The Proposed Amendment
X. International Trade Impact Assessment
XI. Unfunded Mandates Reform Act Analysis
XII. Paperwork Reduction Act
XIII. International Compatibility
XIV. Executive Order 13132, Federalism
XV. Environmental Analysis
XVI. Energy Impact
I. Background
On September 11, 2001, terrorist attacks against the United States
resulted in unprecedented human casualties and property damage. In
response to those attacks, Congress passed the Aviation and
Transportation Security Act (ATSA), which established the
Transportation Security Administration. TSA was created as an agency
within the Department of Transportation (DOT), operating under the
direction of the Under Secretary of Transportation for Security. On
March 1, 2003, TSA was transferred to the Department of Homeland
Security (DHS);\1\ the office formerly designated DOT Under Secretary
for Transportation Security is now Administrator of TSA. TSA continues
to have the statutory authority and responsibility that ATSA granted to
the Administrator with respect to security in all modes of
transportation.\2\ In ATSA, Congress set forth the following specific
requirements for TSA in the area of air cargo security:
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\1\ Homeland Security Act, Pub. L. 107-296 (Nov. 25, 2002).
\2\ 49 U.S.C. 114(d).
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Provide for screening of all property, cargo, carry-on and
checked baggage, and other articles, that will be carried aboard a
passenger aircraft operated by an air carrier or foreign air carrier;
\3\ and
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\3\ 49 U.S.C. 44901(a)
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Establish a system to screen, inspect, or otherwise ensure
the security of freight that is to be transported in all-cargo aircraft
as soon as practicable.\4\
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\4\ 49 U.S.C. 44901(f)
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TSA has addressed air cargo security through the issuance of
regulations, Security Directives (SDs), and Emergency Amendments (EAs)
to security programs. All cargo loaded on passenger aircraft is subject
to security requirements through TSA's known shipper program, which
prohibits operators of passenger aircraft from transporting any cargo
from shippers that are unknown.\5\ Notably, in 49 U.S.C. section
44901(a), Congress expressly provided that the known shipper program is
a form of screening that need not be carried out by a Federal
government employee, unlike most screening of persons and property that
is loaded on a passenger aircraft. Thus, aircraft operators carry out
screening using the known shipper program.
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\5\ See discussion on Known Shipper Program at IV.G.
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The known shipper program has been substantially strengthened since
September 11, 2001, and additional security measures have been
implemented over the last two years. TSA prohibits aircraft operators
in passenger operations under full programs \6\ from transporting cargo
unless a Known Shipper ships it. Entities may qualify for Known Shipper
status if they meet certain security requirements. This proposed rule
would codify the known shipper program as well as provide enhancements
to the existing structure to strengthen the program further.
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\6\ See discussion of aircraft operator security programs in IV.
of this preamble.
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This proposed rule also includes other elements to improve security
of air cargo carried on passenger aircraft. With respect to all-cargo
aircraft, this proposed rule would enhance security significantly by
requiring the adoption of a number of measures by airports, aircraft
operators, and indirect air carriers (IACs), sometimes known as air
freight forwarders.
Following the acts of terrorism on September 11, the Federal
Aviation Administration (FAA) and then the Transportation Security
Administration (TSA) took steps to amend security regulations governing
aviation security, including the acceptance and handling of air cargo.
While other agencies, including FAA, regulate safety considerations in
the transportation of cargo and U.S. Customs and Border Protection
(CBP) regulates the entry of cargo into the United States, TSA is
solely responsible for the security of shipments of air cargo. The
requirements outlined in this proposed rule, including those presently
implemented by security directives, would comprehensively enhance the
security of air cargo. These proposals would fill gaps in existing air
cargo security regulations to mitigate the threat of terrorism to this
vital industry.
Section IV of this NPRM specifically addresses each of the changes
made to 49 CFR parts 1540-1548 and discusses how those changes will
improve air cargo security. The major objectives of the program are to
prevent passenger and large all-cargo aircraft from being used as
weapons and to prevent unauthorized explosives from being carried
aboard, and potentially detonated, during flight. In summary, DHS is
proposing to establish a Standard Security Program for all-cargo
aircraft operators utilizing aircraft with a take-off weight of over
45,500 kg. These carriers currently are not covered by the requirement
in section
[[Page 65260]]
1544.101(a) as they relate to the cargo provisions of section 1544.205
because they do not carry passengers. Instead, these all-cargo
operators typically follow provisions of 1544.101(d) and (e), which are
intended to govern the operations of much smaller aircraft. The current
rules for cargo carried on certain passenger aircraft, and for other
all-cargo operations under the existing Twelve-Five Standard Security
Program, would be enhanced. DHS also proposes to extend security threat
assessments, or focused background checks, to air cargo industry
workers who handle air cargo but do not operate within a secure area.
Currently, these workers are not screened, leaving the possibility that
they could introduce weapons, explosives, or individuals into the air
cargo system. For similar reasons, we also propose to extend Secure
Identification Display Area requirements at airports that have these
areas under Sec. 1544.205 to cargo operation areas not covered by the
current language of this regulation. We also seek to ensure persons
traveling on all-cargo aircraft are screened to ensure they do not pose
a threat to the aircraft. Finally the draft regulation would bolster
the requirements imposed on indirect air carriers in recognition of the
fact that vulnerabilities within their operations could lead to the
introduction of weapons, explosives, or individuals who may jeopardize
the security of aircraft. None of these measures is currently covered
under existing TSA or other agency regulations.
CBP has issued regulations governing international air cargo, but
the CBP regulations have a different purpose than these proposed
regulations. As a result, there is no redundancy in the two programs.
Internationally, CBP requires aircraft operators to report cargo
manifest data in advance of arrival into the United States under 19 CFR
4.7-7a. This requirement, however, may be fulfilled at the time the
aircraft is already flying to the United States, when it may be too
late to prevent an incident that would destroy the aircraft and
potential ground-level targets. TSA and CBP are currently engaged in
efforts to leverage their respective regulatory programs to further
militate against an act of terrorism through air cargo. While CBP also
has other security-focused regulations, the CBP mission and statutory
authority concentrates on preventing the entry of high-risk goods from
entering the United States upon arrival at the border. These CBP
regulations do not govern the security requirements that air carriers
must implement in order to prevent the introduction of explosives or
operatives as cargo moves through the supply chain and onto aircraft
for flight. TSA regulations and proposed amendments address this
different security threat.
II. Efforts Leading to the Development of This NPRM
This NPRM is the result of more than a year of industry
consultation, strategic planning and interagency coordination by TSA
and DHS. The foundation of the policy changes recommended here are
TSA's consultations with industry through its Aviation Security
Advisory Committee (ASAC), the development of the DHS/TSA Air Cargo
Strategic Plan, and coordination within the Department of Homeland
Security.
A. The Aviation Security Advisory Committee
The Aviation Security Advisory Committee, a standing committee
organized under the Federal Advisory Committee Act, was created in
1989, in the wake of the crash of Pan Am 103 over Lockerbie, Scotland,
to provide the federal government with expert consultation on aviation
security issues. Previously managed by the FAA, ASAC is now managed by
TSA. ASAC is composed of 27 organizations with a stake in securing the
aviation sector; members include groups representing victims and
survivors of terrorist acts, freight forwarders, aircraft owners,
airports, aircraft manufacturers, representatives of passenger and
cargo airline management and labor, and representatives of key federal
government agencies.
In April 2003, ASAC established three Air Cargo Security working
groups: Shipper Acceptance Procedures (which focused on known shipper
and other screening protocols), Indirect Air Carrier Security and
Compliance, and Securing the All-Cargo Aircraft. ASAC working group
members consisted of representatives from the following organizations
and agencies, listed alphabetically: Air Courier Conference of America;
Air Forwarders Association; Air France; Air Line Pilots Association;
Air Transport Association; Airport Law Enforcement Action Network;
Airports Council International--North America; Allied Pilots
Association; American Association of Airport Executives; American
Trucking Association; Association of Flight Attendants; Aviation
Consumer Action Project; British Airways; Cargo Airline Association;
Coalition of Airline Pilots Association; Federal Aviation
Administration; Federal Bureau of Investigation; International Air
Transport Association; Lufthansa; National Air Carrier Association;
National Customs Brokers and Forwarders Association of America;
National Industrial Transportation League; Regional Airline
Association; Transportation Intermediaries Association; U.S. Customs
and Border Protection; U.S. Department of Transportation--Office of the
Secretary; U.S. Department of State; U.S. Postal Service; and Victims
of Pan Am Flight 103.
On October 1, 2003, ASAC presented TSA with its final report on air
cargo security, which included 42 recommendations covering 22 topical
areas.\7\ The working group's recommendations included strengthening
the known shipper program by improving technology links between
aircraft operators and the federal government, leveraging new
technology to create a more layered cargo security approach, augmenting
requirements to achieve known shipper status, strengthening the
Indirect Air Carrier Standard Security Program (IACSSP) and securing
the all-cargo aircraft operating area. The recommendations from the
consensus report are reflected throughout this NPRM.
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\7\ the ASAC report is protected at Sensitive Security
Information under 49 CFR part 1520.
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B. Air Cargo Security Strategic Plan
While the ASAC working groups were completing their independent
assessments of air cargo security, TSA was developing an extensive
strategic plan for securing air cargo (Air Cargo Strategic Plan). The
Air Cargo Strategic Plan, which was completed in November 2003, and
approved by the Department of Homeland Security in January 2004,
evaluated TSA's and others' analyses of air cargo security, including
the ASAC report. Based on these evaluations, the Air Cargo Strategic
Plan details a threat-based, risk-managed program for securing the air
cargo transportation system. The Air Cargo Strategic Plan contains a
vision to ensure that TSA has adequately considered the security of air
cargo operations. It identifies priority actions based on risk, cost,
deadlines, performance, research and technology initiatives, and
coordinated stakeholder outreach efforts. The Air Cargo Strategic Plan
focuses on a multi-layered approach to security.
The Air Cargo Strategic Plan contains sensitive security
information (SSI); therefore, its contents cannot be
[[Page 65261]]
disclosed to the public.\8\ In summary, it prescribes TSA's mission in
the area of air cargo: providing the most effective security program
possible while maintaining effective stewardship of resources and not
unduly impeding the flow of commerce. The plan is multimodal, ensures
that TSA has adequately considered the expanse of the air cargo
security domain, and details a program for denying terrorists the
opportunity to exploit that system. It identifies priority actions
based on risk, cost, deadlines, performance, research and technology
initiatives, and coordinated stakeholder outreach efforts in four
strategic components: enhancing shipper and supply chain security,
identifying elevated risk cargo through prescreening, identifying
technology for performing targeted air cargo inspections, and securing
all-cargo aircraft through appropriate facility security measures.
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\8\ SSI is information obtained or developed in the conduct of
security activities, including research and development, the
disclosure of which TSA has determined would: constitute an
unwarranted invasion of privacy; reveal trade secrets or privileged
or confidential information obtained from any person; or be
detrimental to transportation security. 49 CFR 1520.5(a)(1-3); 69 FR
28066, 28082-28083 (May 18, 2004).
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This NPRM proposes to implement many of the provisions of the Air
Cargo Strategic Plan and ensures that the appropriate regulatory
framework exists for additional measures that are not regulatory in
nature. In addition to regulatory changes, aspects of the Air Cargo
Strategic Plan will be implemented through security program updates,
SDs and EAs, research and development programs, and public-private
cooperative endeavors.
C. TSA-CBP Air Cargo Coordination
Since its establishment in November 2002 by the Homeland Security
Act of 2002 (Pub. L. 107-296), the Department of Homeland Security has
had, as one of its central tenets, the goals to reduce redundancy and
improve effectiveness. This priority has particularly been the case in
the area of air cargo security. Shortly after their transfer to the
DHS, TSA and the U.S. Customs and Border Protection (formerly, the
United States Customs Service) initiated an interagency program to
leverage resources, eliminate unnecessary duplication and ensure
compatibility between their respective air cargo security programs. The
goal of this endeavor is to ensure that DHS has a comprehensive,
coordinated policy for securing air cargo entering, transiting within
and departing the United States. This NPRM complements CBP's programs,
including the following primary coordination areas: the TSA known
shipper program in conjunction with Customs-Trade Partnership Against
Terrorism (C-TPAT); targeting, risk assessment, and compliance
measurement; technology research and development; and explosives
detection canine programs. This interagency coordination is
instrumental to the implementation of TSA's layered approach to air
cargo security and to many of the systems and processes that will
support the regulatory changes proposed in this NPRM, and coincides
with a Congressional mandate in the conference report accompanying the
DHS appropriations act (H.R. Conf. Report No. 108-280 (2004) (``Air
Cargo Report'')) that directed TSA to consider testing the expansion of
C-TPAT to the domestic air cargo supply chain.
III. Summary of This Rulemaking
As explained further in section IV, this NPRM would enhance
aviation cargo security significantly by requiring a number of
measures. The NPRM would create a mandatory security program for all-
cargo aircraft operations over 45,500 kg (100,309.3 pounds) and would
amend existing security regulations and programs for other aircraft
operators, foreign air carriers, airport operators, and IACs. The
current rules for cargo carried on certain passenger aircraft, and for
all-cargo operations under the existing Twelve-Five Standard Security
Program \9\ would be enhanced. Existing screening requirements for
aircraft operators would be extended to cover all-cargo operations.
Airports or aircraft operators would be required to secure the cargo
operations areas. The definition of ``Indirect Air Carrier'' included
in 49 CFR 1540.5 would be amended to include those transporting goods
via all-cargo aircraft and all IACs would be subject to a more thorough
vetting by TSA prior to receiving authorization to operate.
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\9\ See discussions of Twelve-Five Standard Security Program at
III.C. and IV.G.
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This NPRM also would require Security Threat Assessments for
individuals who have unescorted access to cargo carried by certain
aircraft operators, foreign air carriers, and IACs.
TSA is proposing these amendments after extensive consultation with
industry through its Aviation Security Advisory Committee, and with
other Federal agencies including the Department of Transportation and
U.S. Customs and Border Protection. These amendments would
significantly enhance aviation cargo security.
A. Who Is Affected by This NPRM?
TSA regulates four segments of the air cargo industry: (1) Airports
serving cargo operations; (2) passenger aircraft operators that
transport cargo; (3) all-cargo aircraft operators; and (4) IACs. Each
segment is currently required to implement some type of TSA cargo
security program. The current regulatory regime covers domestic
entities in these four categories as well as foreign air carriers that
operate into or out of the United States. The proposals in this NPRM
would amend current security requirements for all of these industry
segments, both through direct regulatory changes and through
anticipated related security program changes.
B. Why Are These Regulatory Changes Necessary?
TSA has identified two critical risks in the air cargo environment:
(1) The hostile takeover of an all-cargo aircraft leading to its use as
a weapon; and (2) the use of cargo to introduce an explosive device
onboard a passenger aircraft in order to cause catastrophic damage. The
magnitude of these risks is determined by factoring in the presence of
credible threats and the existence of possible vulnerabilities that a
terrorist could exploit. Many steps taken since September 11, 2001 have
reduced the capabilities of international terrorist organizations;
however, the terrorist threat remains. Likewise, new aviation security
requirements have reduced the vulnerability of the air cargo system.
Nonetheless, TSA, in cooperation with its many partners in the air
cargo transportation industry, has identified additional enhancements
of air cargo security to reduce further the likelihood of cargo
tampering or unauthorized access to the aircraft with malicious intent.
This NPRM addresses the remaining vulnerabilities in the air cargo
system. TSA invites public comment on whether these concerns are
appropriately addressed and adequately accounted for in this NPRM.
Terrorists have attempted to use air cargo to attack U.S. passenger
aircraft on occasions in the past, and aviation generally continues to
be a priority target for terrorists. The threat to air cargo represents
a meaningful risk. TSA believes that strengthening air cargo security
requirements through this proposed rulemaking will mitigate the
threats.
C. How Did TSA Enhance Cargo Security After September 11, 2001?
Federal air cargo security requirements date back to the 1970's and
have since evolved. Since
[[Page 65262]]
September 11, 2001, the Federal Government has moved expeditiously to
strengthen air cargo security even further. Immediately after September
11, FAA prohibited the shipment of all cargo aboard passenger aircraft.
Later, this restriction was partially lifted to allow cargo from known
shippers to be transported on passenger aircraft operators, but not
cargo from unknown shippers.\10\ By limiting air cargo aboard
commercial passenger aircraft to known shippers only, FAA reduced the
likelihood that cargo would pose a security threat to passenger
aircraft. Since its creation, TSA has also taken several emergency
measures to strengthen existing requirements, including additional
qualifying requirements for the known shipper program.\11\
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\10\ See Section IV. G.
\11\ The specific criteria for the known shipper program are SSI
under 49 CFR part 1520.
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In the all-cargo aircraft environment, several all-cargo aircraft
operators have voluntarily adopted the TSA Domestic Security
Integration Program (DSIP) \12\ to transfer cargo to passenger aircraft
operators and to apply security identification display area (SIDA)
requirements to all-cargo operations. The DSIP has been in place since
1992. FAA also strengthened the requirements for IACs immediately after
September 11 by requiring additional steps to achieve IAC status. On
February 22, 2002, TSA implemented the security program for Aircraft
12,500 Pounds or More, which became effective April 1, 2002 and applies
to operators of aircraft with Maximum Certificated Take Off Weight
(MTOW) more than 12,500 pounds in scheduled or charter service that are
carrying passengers, cargo, or both and are not otherwise required to
have a full or partial security program.\13\ The rule also requires the
pilot, flight engineer, or flight navigator assigned to duty during
flight time on all regulated aircraft operators to have successfully
completed a fingerprint-based criminal history records check (CHRC). It
calls for restricted access to the flight deck if the aircraft has a
flight deck door, and it mandates use of security coordinators,
security training, procedures for bomb threats, and contingency plans.
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\12\ The DSIP is a limited program under 49 CFR 1544.101(g). TSA
has made this program available to all-cargo aircraft operators, in
part, to allow those entities to interline cargo with passenger
aircraft operations.
\13\ 67 FR 8205 (Feb. 22, 2002).
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In June 2002, TSA completed an extensive Air Cargo Security
Scenario Analysis. The specific contents of this report are sensitive
security information, and accordingly not publicly releasable. Where
available, actual data were used for calculations; where data were not
obtainable, estimates were identified and used. The analysis examined
various scenarios, which focused on varying degrees of cargo screening,
and which were selected to prevent or deter the introduction of
explosive devices into the cargo holds of passenger aircraft. It was
the first known attempt to conceptualize and conduct a detailed
examination of the different security regimes, measure implementation
costs and assumptions, and account for potential responses of the
industry to the security changes, including the potential costs of
implementation. The scenarios and variants ranged from screening
unknown shipper cargo to screening cargo on passenger aircraft or
preventing any cargo from being transported on passenger aircraft. The
various scenarios were compared in terms of costs, benefits, and
effectiveness.
TSA also has enhanced cargo security by implementing a web-enabled
Known Shipper database to centralize data on persons and businesses
that are authorized to ship air cargo on passenger aircraft to allow
quick and efficient verification of a shipper's status while reducing
redundancy. The initial version of the database was deployed in the
Fall of 2002 and is currently being used by aircraft operators and IACs
on a voluntary basis. Most of the major airlines, and 400 IACs, are
participating. The database already consists of over 400,000 known
shippers. In the near future, TSA plans to make use of the system
mandatory for all aircraft operators, foreign air carriers and IACs
required to participate in the known shipper program. This proposed
rule would provide authority for this planned change, which would be
implemented in the security programs of the aircraft operators, foreign
air carriers and IACs.
At the core of this endeavor, the Known Shipper database will allow
aircraft operators, foreign air carriers and IACs to submit
electronically information on their known shippers to TSA and to verify
electronically whether a client has been approved with known status
under the program. This effort will offer a number of benefits, both
for facilitating trade and improving security. Persons and businesses
seeking Known Shipper status will no longer have to obtain this status
from every aircraft operator, foreign air carrier or IAC with whom they
do business; instead, once a shipper is accepted into the database,
they will be considered known to all aircraft operators, foreign air
carriers and IACs with access.
In November 2003, TSA required U.S. aircraft operators, foreign air
carriers, and IACs to carry out certain additional security measures
with respect to cargo. The U.S. intelligence community continued to
receive and evaluate a high volume of reports indicating possible
threats against U.S. interests. These reports, combined with recent
terrorist attacks, created an atmosphere of concern. Terrorist groups
such as Al Qaeda are capable of sophisticated tactics. The Department
of Homeland Security was concerned about Al-Qaeda's continued interest
in aviation, including using cargo aircraft to carry out attacks on
critical infrastructure. In recognition of this threat, TSA made a
determination that these circumstances required immediate action to
ensure safety in air transportation. The additional measures TSA
required in response to those concerns are described in IV. A.
D. What Would This Proposed Rulemaking Do To Strengthen the Current Air
Cargo Security Regulatory Regime?
TSA is implementing a layered security solution throughout the
life-cycle of the air cargo shipment and the aircraft on which it is
being transported. As discussed in more detail in section IV. of this
NPRM, TSA proposes to:
Require security threat assessments for individuals with
unescorted access to cargo;
Codify cargo screening requirements first implemented
under SDs, EAs, and part 1550 programs issued in November 2003;
Require airports with SIDAs to extend them to cargo
operating areas;
Require aircraft operators to prevent unauthorized access
to the operational area of the aircraft while loading and unloading
cargo;
Require aircraft operators under a full or all-cargo
program to accept cargo only from an entity with a comparable security
program or directly from the shipper;
Codify and further strengthen the Known Shipper program;
Establish a security program specific to aircraft
operators in all-cargo operations with aircraft with a maximum
certificated takeoff weight more than 45,500 kg;
Strengthen foreign air carrier security requirements
essentially to parallel the requirements on U.S. aircraft operators;
and
Enhance security requirements for Indirect Air Carriers.
[[Page 65263]]
TSA's proposed security requirements are infused throughout the
supply chain instead of concentrating all efforts on one measure, such
as physical inspection, at a single stage potentially resulting in
significant disruption of the supply chain. This NPRM is a central
component of this solution and proposes updating the requirements
applicable to airports, aircraft operators, IACs, and foreign air
carriers currently operating under a security program, and instituting
new security requirements for all-cargo aircraft operators and the
freight forwarders servicing them.
E. How Will TSA Enforce Compliance?
TSA relies on its staff of field inspectors to enforce compliance
among regulated parties. As noted in various sections above, TSA also
believes that issuance of a voluntary disclosure program, development
and distribution of security training materials for certain IAC
employees and agents, and implementation of enhanced electronic
communication capabilities will materially enhance the regulated
parties' compliance ability and orientation.
The ASAC working groups recommended that TSA implement a voluntary
disclosure program to facilitate and improve compliance by regulated
parties. TSA has received numerous similar requests from regulated
parties. TSA agrees that aviation security is promoted by creating
incentives for regulated entities to identify, disclose and correct
their own instances of non-compliance, and to invest in efforts to
preclude their recurrence. As a result, in December 2003, TSA
implemented a voluntary disclosure program. Details of the program are
available via the Internet on the TSA Web site at http://www.tsa.gov,
with a link titled ``TSA Announces Civil Enforcement Policies'' in the
section on Law & Policy. TSA's program is designed to encourage
compliance with TSA regulations, foster secure practices, and encourage
the development of internal evaluation programs. Upon detecting an
inadvertent violation not yet known to TSA, a regulated entity must
take immediate action to correct the violation. The regulated entity
must report the violation to TSA in writing within 24 hours of
detection and submit a detailed written report within 10 calendar days
of the initial reporting. The regulated entity must develop a
corrective action plan to ensure that the noncompliance remains
corrected. After the regulated entity takes these steps, TSA may issue
a letter of correction instead of a civil penalty action for the
violation, provided all other elements of the policy are met. This
program has been issued in a separate action and is not part of this
rulemaking proposal.
F. Did TSA Consider Recommended Changes?
Yes, in addition to its own assessments, TSA based the policy
changes proposed in this NPRM on recommendations received from the
Department of Transportation Office of Inspector General (OIG), the
General Accounting Office (GAO), and the Aviation Security Advisory
Committee (ASAC). In addition, TSA has coordinated its efforts with
other agencies in the Department of Homeland Security, including the
U.S. Customs and Border Protection, which has statutory authority for
screening cargo entering and departing the United States.
The Department of Transportation Office of Inspector General
completed its audit of the air cargo security program in September
2002. This report is SSI. Accordingly, its distribution is restricted.
In the report, the OIG offered 14 specific recommendations to increase
the level of security as to ``insiders''--namely employees of aircraft
operators and IACs with access to cargo. These recommendations varied
from increasing the vetting of IACs seeking approval of their security
program to training and testing requirements to improved compliance
enforcement.
Further, in December 2002, the GAO issued its report,
``Vulnerabilities and Potential Improvements for the Air Cargo System
(GAO-03-344).'' GAO traced the implementation of recommendations
delivered during the 1990's and the development of technologies or
operational procedures that might be used to enhance air cargo
security. GAO did not make specific recommendations, but called for TSA
to develop a comprehensive plan for air cargo security that includes
priority actions identified on the basis of risk, costs, deadlines for
completing those actions, and performance targets. TSA completed this
strategic plan in November 2003. As noted previously, this document
includes SSI and is not available to the public.
As previously discussed, TSA also considered the ASAC consensus
report transmitted on October 1, 2003.
G. Were Other Solutions Considered and Why Were the Proposals in the
NPRM Chosen Over Others?
TSA recognizes that the air cargo industry is large and complex,
composed of numerous shippers, 226 domestic and foreign aircraft
operators providing services through 2,789 stations at U.S. airports,
and approximately 3,200 IACs with over 10,000 business locations.
Together these entities transport approximately $30 billion worth of
goods per year. In recognition of this breadth and complexity, TSA
considered the full gamut of potential solutions for enhancing air
cargo security in developing this NPRM. TSA analyzed the existing
regulatory structure for air cargo security in the United States,
partnered with industry, reviewed a variety of external assessments of
the air cargo system, and coordinated with other agencies in the
Department of Homeland Security with air cargo security experience and
responsibilities, such as CBP, to develop solutions for today's
challenges. TSA also reached out to numerous international entities
including the European Commission, Transport Canada and International
Air Transport Association to assess best practices and regulatory
regimes that might be applicable to the U.S. environment.
The majority of participants in the ASAC air cargo security working
groups have stated that proposals to require the inspection of every
piece of cargo shipped on passenger aircraft are impractical. Instead,
they recommended a risk-based targeting strategy to identify higher
risk cargo for additional scrutiny; relying, in part, on the Government
Accounting Office (GAO) report on Vulnerabilities and Potential
Improvements for the Air Cargo System,\14\ the Department of
Transportation's Office of the Inspector General (OIG) Audit of the
Cargo Security Program,\15\ and TSA's Air Cargo Security Scenario
Analysis. These reports have cautioned that, in the absence of an
appropriate targeting methodology and data, a requirement for
inspection of 100% of air cargo would severely burden the just-in-time
delivery that is currently a key competitive feature of many U.S.
manufacturing and distribution industries, and could have particularly
severe negative impacts on aircraft operators, IACs and their employees
and agents. TSA agrees with this assessment. TSA believes that a
requirement to inspect every piece of cargo could result in an
unworkable cost of more than $650 million in the first year of
implementation.\16\
---------------------------------------------------------------------------
\14\ GAO-03-344 December 2002.
\15\ Report Number SC-2002-113 (September 19, 2002). This report
is SSI.
\16\ See Regulatory Evaluation for the Air Cargo Security
Requirements NPRM, Table 1, Ten-Year Undiscounted Cost Summary for
passenger and all-cargo flight cargo screening.
---------------------------------------------------------------------------
[[Page 65264]]
In its final presentation to TSA, ASAC noted that the layered
solution outlined in its forty recommendations would significantly
enhance air cargo security while ensuring that commerce is not
disrupted, two goals TSA is committed to achieving. It was the sense of
the ASAC that technology solutions must be pursued as aggressively as
possible. Specifically, the committee's recommendations included using
technology to improve communication links between regulated parties and
the federal government, leveraging new technology to create a more
layered cargo security approach, and using technology to enable
enhanced requirements for achieving Known Shipper status.
Similarly, TSA reviewed FAA's October 2001 ``Air Cargo Threat
Assessment'' (DOT/FAA/AR-02/15) analysis of the vulnerabilities of the
current air cargo security program.\17\ In this report, FAA's overall
assessment was that an integrated security regime was required. These
FAA recommendations have been considered and are reflected in portions
of this NPRM.\18\
---------------------------------------------------------------------------
\17\ This document is SSI and, accordingly, not publicly
releasable.
\18\ This report is protected as Sensitive Security Information
under 49 CFR part 1520.
---------------------------------------------------------------------------
The Department of Transportation Office of the Inspector General
audited the FAA's air cargo security program. The OIG's report of this
audit and its results, including data sources, are SSI. Like the ASAC
and FAA, the OIG determined that air cargo security could best be
bolstered by implementing layered solutions throughout the air cargo
system; and offered fourteen specific recommendations. TSA concurred
with the OIG's assessment and these recommendations are reflected in
both TSA's air cargo strategic plan and in this NPRM.
TSA will continue to use SDs and EAs as required to address
immediate threats. These directives are issued to regulated parties
outlining specific requirements that must be met as part of their
security programs and are protected as sensitive security information.
Like TSA, CBP also relies on a layered security program for
securing air cargo and both agencies are committed to determining how
best to leverage individual resources and avoid unnecessary redundancy.
As a result, TSA and CBP have initiated a dialogue for coordinating
their respective air cargo security activities. TSA and CBP initiated
this effort shortly after DHS was established and the agencies received
a Congressional mandate to continue this effort during Fiscal Year
2004. TSA and CBP are looking closely at how best to apply their
combined experience in promoting supply chain security, securing cargo
prior to loading, and applying risk-based targeting programs. In
addition, through this effort, DHS is committed to ensuring the maximum
degree of consistency between TSA and CBP programs and minimizing the
impact on industry by coordinating requirements and procedures.
Within the BTS Directorate, CBP and TSA have distinct, but equally
vital, security missions in securing air cargo. Historically, CBP has
primarily been responsible for determining the admissibility of the
cargo held on the aircraft and as such is concerned about cargo that
may carry threats to be deployed once the cargo reaches U.S. borders.
TSA, on the other hand, is responsible for securing both domestic
aircraft and foreign flights destined for the United States from
destruction or hijacking and as a result is primarily concerned with
the illicit loading of explosives or stowaways on board.
The priority mission of CBP is to prevent terrorists and terrorist
weapons from entering the United States. That mission means improving
security at the nation's physical borders and ports of entry, but it
also means extending the zone of security beyond our physical borders--
so that American borders are not the first line of defense. With regard
to the securing of international air cargo, CBP has a long history of
screening and inspecting cargo upon arrival in the United States. Today
it continues this challenge with a refined focus on stopping terrorists
and terrorist weapons at our nation's borders.
TSA's mission is to provide security in all modes of
transportation, with a priority emphasis on aviation. Like CBP, TSA
employs a threat-based, risk-managed approach to securing air cargo.
Therefore, we focus our efforts in the passenger environment on
preventing the introduction of explosive devices into the cargo bays of
passenger air carriers. In the all-cargo environment, while measures
are taken to prevent the introduction of an explosive device on an all-
cargo aircraft, our primary concern is focused on keeping intruders or
stowaways off the aircraft, as a hijacking causes significant loss of
life and other damage on the ground and in the air.
Extensive interagency analysis and outreach to both industry and
other federal agencies have led TSA to conclude that a threat based,
risk managed, layered solution will provide the highest degree of
security in the air cargo environment while causing the least financial
and procedural impact on a business sector that contributes
significantly to the United States and global economies. TSA invites
public comment on the feasibility of this approach overall, on the
specific rule changes and requirements proposed in this NPRM, and on
other possible actions, such as a requirement to inspect 100% of air
cargo, that have been the subject of public discussion but which TSA,
for reasons outlined above, has determined not to propose in this NPRM.
IV. Summary of Proposed Amendments
A. Current Regulation of Aircraft Operators and Foreign Air Carriers
and Proposed Amendments
TSA regulations currently cover a variety of aircraft operators as
part of an overall, layered approach to security. Aircraft operators
with scheduled or public charter passenger operations using aircraft
with a passenger seating configuration of 61 or more, or those using
smaller aircraft that enplane passengers from or deplane passengers
into a sterile area, must have full programs under Sec. 1544.101(a).
These operators often carry cargo in addition to passengers and must
comply with cargo security requirements under Sec. 1544.205.
Aircraft operators using aircraft in scheduled or public charter
passenger operations using aircraft with a passenger seating
configuration of 31 or more but 60 or fewer seats must have a partial
program under Sec. 1544.101(b).
Aircraft operators using aircraft with a maximum certificated
takeoff weight of 12,500 pounds or more, in scheduled or charter
service, carrying passengers or cargo or both, must have a twelve-five
program under Sec. 1544.101(d) & (e).
Aircraft operators using aircraft in private charter passenger
operations using aircraft with a passenger seating configuration of 61
or more or a maximum certificated takeoff weight greater than 45,500 kg
(100,309.3 pounds) must have a private charter program under Sec.
1544.101(f), as well as having a twelve-five program.
This NPRM is proposing to add another type of program. As discussed
further in this preamble, TSA is proposing that aircraft operators
operating all-cargo aircraft with a maximum certificated takeoff weight
of more than 45,500 kg (100,309.3 pounds) have an all-cargo program
under proposed Sec. 1544.101(h) & (i).
Certain foreign air carriers must have security programs as well.
Those with
[[Page 65265]]
scheduled or public charter passenger operations using aircraft with a
passenger seating configuration of 61 or more, or those using smaller
aircraft that enplane passengers from or deplane passengers into a
sterile area (analogous to U.S. operators with full programs), must
have security programs under Sec. 1546.101(a) or (b). Those in
scheduled or public charter passenger operations using aircraft with a
passenger seating configuration of 31 or more but 60 or fewer seats
must have programs under Sec. 1546.101(d) (analogous to U.S. operators
with partial programs).
In addition, in November 2003, in response to threats, TSA required
foreign air carriers that perform all-cargo operations using aircraft
with a maximum certificated takeoff weight of 12,500 pounds or more to
carry out the All-Cargo International Security Procedures issued by
TSA. 69 FR 3939 (Jan. 27, 2004). In this NPRM, TSA is proposing to
codify this procedure and to create foreign air carrier security
programs analogous to a U.S. twelve-five program in all-cargo
operations and to the proposed all-cargo program in part 1544.
Additionally, in November 2003, TSA issued SDs and EAs requiring
domestic aircraft operators under a full program or a twelve-five all-
cargo program and foreign air carriers to apply further screening
measures to cargo. More specifically, TSA required that these operators
inspect a percentage of cargo prior to loading it on an aircraft.
Aircraft operators under a full program must also continue to abide
by the requirements of the Known Shipper program. Generally, these
aircraft operators may transport only cargo from a known shipper.
Congress specified in ATSA, codified at 49 U.S.C. 44901(a), that a
Federal employee is not required to carry out screening requirements
for a passenger aircraft operator of the Known Shipper program. These
screening functions may be performed by the private sector. Likewise at
44901(a), Congress distinguished that Federal screeners must conduct
certain passenger screening. Operators of all-cargo aircraft do not
share this distinction. All-cargo aircraft operators also may perform
cargo screening; it is not required that a Federal employee carry out
screening of all-cargo aircraft.
The security procedures required for the varying programs are
focused to address the greatest perceived threats to the respective
operations. Accordingly, TSA requires the most security procedures
under the layered approach to those operations perceived to have the
highest threat. For instance, the full program focuses security
requirements both to protect the large number of passengers on board
the aircraft as well as to prevent the largest of aircraft from being
hijacked and used as a missile to attack another target, and thus are
subject to the most intense security measures. The proposed all-cargo
program would focus on the latter threat because aircraft operators
under this proposed program generally use the same types of aircraft as
those used under a full program. All-cargo operations under the twelve-
five program require layers of security appropriate to the lower
threats posed by smaller aircraft. TSA has developed a measured
approach to match security requirements with the possible risks.
B. Security Threat Assessments for Air Cargo Workers
TSA currently requires a variety of individuals working in aviation
to submit to a criminal history records check. Generally, these
individuals work on airport grounds and have access to secure areas.
In the cargo environment, many other persons have access to cargo
before someone who works for the airport and has had such a check
handles it. In this rulemaking, TSA proposes to require additional
persons who have unescorted access to air cargo, but do not have
unescorted Security Identification Display Area (SIDA) access, to
undergo a security check to verify that they do not pose a security
threat.
TSA recognizes that the number of individuals with access to cargo
is large--approximately 63,000--and that the companies that they work
for run the gamut from complex organizations to ``mom and pop's.''
Therefore, requiring all these individuals to undergo fingerprint-based
criminal history background checks would be a time-consuming and costly
process. TSA believes that potential security concerns related to
unescorted access to cargo by these individuals would be best addressed
at this time by requiring the individuals to submit to a Security
Threat Assessment program, focused on the threat of terrorism. A
Security Threat Assessment, as proposed in this NPRM, would rely on
checks of existing intelligence-based records and databases to ensure
that an individual who is a known or suspected threat is prohibited
from working in positions that could allow that individual to have
unescorted access to air cargo. This program adopts best practices from
the financial services and transportation security communities to
reduce the likelihood that a terrorist could gain access to cargo.
In proposed Sec. Sec. 1544.228, 1546.213, and 1548.15, TSA would
prohibit aircraft operators under a full program or all-cargo program;
foreign air carriers operating under Sec. Sec. 1546.101(a) (b) or (e);
and each IAC from authorizing any individual to have unescorted access
to cargo unless the respective operator has verified the identity of
that individual in a manner acceptable to TSA, and that individual has
successfully completed a CHRC under 49 CFR 1542, 1544, or 1546,
Security Threat Assessment pursuant to proposed Subpart C of part 1540,
or another Security Threat Assessment approved by TSA.
TSA has also considered extending security threat assessment
requirements in additional contexts. For instance, TSA considered
requiring every employee of an entity regulated by TSA that is in the
business of cargo transportation to submit to a security threat
assessment. TSA proposes that the layered approach of requiring
assessments for those individuals with unescorted access to cargo,
combined with requirements to secure cargo upon acceptance, are at this
time sufficiently focused on the potential security threat.
TSA also considered requiring each person who boards for
transportation on an aircraft under an all-cargo security program to
submit to a security threat assessment. Alternatively, TSA considered
requiring persons who board an aircraft under an all-cargo security
program who require prohibited items during the flight to perform their
duties to submit to the assessment. TSA has not proposed these measures
but invites comments on these considerations.
C. Security Measures for Persons Boarding an All-Cargo Aircraft
TSA is proposing to codify requirements for screening persons other
than passengers boarding the all-cargo aircraft with a maximum
certificated take-off weight greater than 12,500 pounds. See proposed
Sec. 1544.202 and Sec. 1546.202. Under FAA rules, some persons who
are not flight crew members or passengers may travel on an all-cargo
aircraft, such as handlers escorting an animal being shipped via air
cargo. See 14 CFR 121.583 and 121.587. Such individuals could be in a
position to attempt to take over the aircraft. TSA believes that it is
necessary to screen such persons to ensure that individuals traveling
on aircraft under an all-cargo program, or under a twelve-five program
in an all-cargo operation, do not present a security threat. Such
screening is now being done under SDs issued in November 2003 and is
included as a proposed regulatory requirement in this NPRM. While
[[Page 65266]]
Congress specified in 49 U.S.C. 44901(a) that a Federal employee must
conduct screening of persons in passenger operations, section 44901(f)
has no such requirement for all-cargo operations. Accordingly, the
private sector may conduct screening in all-cargo operations in
compliance with TSA standards.
D. Screening Cargo
To guard against unauthorized weapons, explosives, persons, and
other destructive substances or items in cargo, TSA proposes to codify
a requirement for aircraft operators to inspect a portion of air cargo,
including that offered by known shippers. See proposed Sec. Sec.
1544.205 and 1546.205. An SD issued to operators with full programs in
November 2003 requires that a portion of known shipper cargo be
inspected, and this NPRM would codify that change. In addition, an SD
issued requires operators of Twelve-Five all-cargo aircraft inspect a
portion of cargo. When conducting inspections, aircraft operators are
required to follow TSA-approved requirements.
In addition, aircraft operators operating under full programs are
currently required to submit individuals conducting cargo screening to
a fingerprint-based CHRC under Sec. 1544.229 to reduce the likelihood
that a terrorist could gain such employment to facilitate the
introduction of unauthorized persons, explosives, incendiaries, and
other substances or items. This proposed rule would also require
aircraft operators operating under all-cargo programs to submit their
cargo screeners to a CHRC under Sec. 1544.229, mitigating the
possibility that an authorized person would threaten or otherwise
compromise the security of the aircraft operations.
TSA considered several other requirements for cargo screening that
are not included in this NPRM. For instance, TSA considered prohibiting
all cargo from transportation on passenger aircraft. TSA recognizes,
however, that this requirement would likely lead to significant
economic impact on passenger operations. Moreover, TSA proposes that a
layered approach to security requirements, including those proposed in
this NPRM, would provide for an appropriate level of security and could
be implemented without undue hardship on the affected stakeholders. TSA
also considered requiring physical inspection of 100% of all cargo on
all aircraft, or alternatively on passenger aircraft. However, as noted
in III.G. above, 100% inspection of cargo would be impractical and
would severely impact the rapid delivery of air cargo. TSA invites
comment on these considerations.
E. Securing the Cargo Operating Environment
Measures to prevent unauthorized individuals from gaining access to
the cargo operations area are necessary to prevent tampering with the
aircraft or the cargo and to remove a potential access point for
stowaways. Currently, at airports that have complete programs under 49
CFR 1542, and therefore are required to have a SIDA based on the
presence of covered passenger operations, all individuals working in
the SIDA must have an airport-approved photo identification (ID) media
that meets standards established by TSA. This ID must be displayed at
all times above the waist on the individual's outermost garments. To
obtain a SIDA ID, a person must successfully undergo a fingerprint-
based CHRC and successfully complete training in accordance with the
airport's security program (see 49 CFR 1542.205, 1542.211, and
1542.213). In addition, procedures must be in place for challenging all
persons not displaying appropriate ID for the area in which they are
found. Currently, all-cargo operations are not specifically covered
under airport SIDA requirements.
At airports that are required to have a SIDA because of the
presence of covered passenger operations, TSA proposes in this NPRM to
extend SIDA requirements to cargo operating areas. See proposed Sec.
1542.205. As previously discussed, the potential consequences of an
all-cargo aircraft being hijacked and used as a missile to attack
another target are comparable to the consequences of a hijacking of a
passenger aircraft of the same size. Accordingly, TSA proposes to add a
layer of security to protect these aircraft further by applying SIDA
requirements in cargo operating areas. Airports that currently have
SIDA have the associated procedures and requirements in place. TSA
believes that airports that have SIDA will be able to extend SIDAs to
areas where cargo is loaded and unloaded without great challenges.
Indeed, the cargo operation areas at many of these airports already are
SIDAs. TSA also considered extending SIDA requirements to airports that
serve all-cargo carriers and are not currently required to have a SIDA.
Airports without SIDAs, however, would be required to implement many
unfamiliar requirements in order to create SIDA. These airports also
may have only occasional and unpredictable all-cargo aircraft traffic,
such as on-demand charter operations. In this NPRM, TSA proposes that
aircraft operators implement other measures that will enhance security
instead of requiring airports without SIDAs to create them.
Accordingly, TSA proposes in Sec. 1544.225 to require that the
aircraft operator prevent unauthorized access to the operational area
of the aircraft while loading or unloading cargo. Note that aircraft
operators now must comply with Sec. 1544.217, which requires covered
aircraft operators to arrange for a law enforcement presence to respond
to any situations that may arise. TSA believes that the aircraft
operator is well positioned to provide sufficient security for their
aircraft operations, in lieu of an airport SIDA. TSA invites public
comment on the economic, operational, and security implications of this
approach. TSA also proposes to require that, before placing an all-
cargo aircraft back into service after a period spent unattended, the
aircraft operator conduct a security inspection of the aircraft. See
proposed Sec. 1544.225 and Sec. 1546.103(a)(1). Together, these
provisions would reduce the likelihood of successful tampering,
stowaway boarding, or the introduction of an improvised explosive
device or other destructive substance or item. Similar provisions are
currently required of passenger aircraft operators operating aircraft
of the same size.
F. Accepting Cargo From Comparable Entities
TSA is proposing to authorize aircraft operators under full or all-
cargo programs to accept cargo only from the shipper, or from an entity
with a security program comparable to the aircraft operator's. See
proposed Sec. 1544.205(e) and Sec. 1546.205(e). The purpose of this
proposed amendment is to prohibit aircraft operators from carrying
cargo transferred from persons or businesses without the appropriate
security measures to guard against the introduction of unauthorized
weapons, explosives, persons, or other destructive substances or items.
TSA will provide these aircraft operators in their security programs
with a more detailed account of what cargo may be accepted.
G. Known Shipper Program
TSA proposes to codify and strengthen the Known Shipper program in
regulation at 49 CFR 1544.239, 1546.215, and 1548.17. As discussed
above in section III., paragraph C., ``How did TSA enhance cargo
security after September 11, 2001?,'' the Known Shipper program is a
protocol to distinguish shippers about whom security-relevant
information is known from those shippers about whom the aircraft
operator has inadequate
[[Page 65267]]
information. This program applies to aircraft operators with full
programs, corresponding foreign air carriers, and IACs that offer cargo
to such aircraft operators and foreign air carriers.
TSA considered extending a regulatory program directly to shippers
of cargo that intend to use air transportation. By doing so, TSA would
have direct oversight and regulatory authority throughout the cargo
supply chain. The number of potential shippers, however, may be
unwieldy. Potentially any person or business may ship cargo by air. TSA
proposes, instead, to focus on aircraft operators and IACs as discussed
through this NPRM.
Certain operational elements of the Known Shipper program are
sensitive security information and cannot be divulged. However, the
existence of the program is a matter of public record. Congress
recognized the existence of the Known Shipper program in the Aviation
and Transportation Security Act, Pub. L. 107-71, at section 110. Since
September 11, 2001, cargo from unknown shippers has not been permitted
to be transported aboard aircraft operated under a full program.
TSA considered allowing unknown shipper cargo on passenger aircraft
after physical inspection. TSA recognizes that this cargo could provide
considerable business opportunity to aircraft operators, but determined
that this measure could not assure adequate security. No single
technology currently exists with sufficient versatility to handle the
vast array of cargo sizes, shapes, and materials to ensure security
while maintaining acceptable throughput, or processing time. TSA
welcomes comments and recommendations on this issue.
Although the Known Shipper program has been in existence for over
10 years in its current form and has its roots in security programs
that date back to 1976, it has not previously been identified in
security regulations; rather, it has been in the aircraft operator
security programs. TSA is proposing to codify and enhance the Known
Shipper program in this NPRM.
TSA will consider, but TSA is not proposing to allow cargo
submitted by unknown shippers to be transported on passenger aircraft
under a full program at this time. TSA invites public comment on the
costs, benefits and practical implications associated with screening
cargo from unknown shippers to the degree necessary to permit it to be
transported on commercial passenger aircraft.
As discussed in III.C. above, TSA is implementing a comprehensive
strengthening of the Known Shipper program. These improvements
centralize and automate the vetting of applicants to the Known Shipper
program. Under this NPRM, when proposing a shipper for the Known
Shipper program, an aircraft operator, foreign air carrier, or IAC
would be required to submit an application electronically to TSA for
vetting against terrorist and law enforcement data. This information
will then be stored in a central database along with the shipper's
status in the program. Aircraft operators, foreign air carriers, and
IACs would be required to check a shipper's status on the system before
accepting its cargo for transport on passenger aircraft. This proposed
requirement will enable TSA to conduct a thorough threat assessment of
those seeking to ship by passenger aircraft.
To assist in implementing the enhancements to the Known Shipper
program, TSA proposes in this NPRM that, when TSA so requires, the
aircraft operators, foreign air carriers, and IACs will submit known
shipper information electronically and update it as needed. TSA has
designed its known shipper database, including the necessary Internet
elements, to ensure that shipper lists are not compromised. TSA
believes that the proposed changes would facilitate industry
participation in the Known Shipper program by reducing the
administrative burden on individual aircraft operators.
H. Establish All-Cargo Operator Standard Security Program
Aircraft operators using passenger aircraft with a passenger
seating configuration of sixty-one seats or more in scheduled or public
charter service must have a full program under 49 CFR 1544.101(a),
using the Aircraft Operator Standard Security Program (AOSSP). Aircraft
operators using passenger aircraft that have a maximum certificated
takeoff weight greater than 45,500 kg (100,309.3 pounds), or a
passenger-seating configuration of 61 or more, that are not government
charters or in private charter service, must have a program under 49
CFR 1544.101(f). Currently, however, all-cargo aircraft operators
operating aircraft of a similar size and potential destructive power
are subject to the Twelve-Five program, rather than the full program.
These operators are currently required to implement security programs
in accordance with TSA's Twelve-Five Standard Security Program
governing aircraft with a maximum take off weight of 12,500 pounds or
more. In addition, some cargo operators voluntarily participate in the
more comprehensive DSIP. Considering the potential risks associated
with heavier all-cargo aircraft, TSA proposes to require additional
steps for securing all-cargo aircraft weighing more than 45,500 kg
(100,309.3 pounds) at Sec. 1544.101(h). These measures would be
incorporated into a mandatory All-Cargo Aircraft Operator Standard
Security Program. The program will include elements of the DSIP.
Extending pertinent requirements to all-cargo aircraft operators
operating above the 45,500 kg threshold would institute security
measures for all-cargo aircraft comparable to passenger aircraft of the
same size. An all-cargo aircraft with maximum certificated takeoff
weight greater than 45,500 kg could cause significant damage if taken
over and used as a weapon. TSA also applies this applicability
threshold in the private charter program,\19\ 49 CFR 1544.101(f), and
it is consistent with international security standards adopted by the
International Civil Aviation Organization.\20\
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\19\ 67 FR 41635, 41637 (June 19, 2002).
\20\ 67 FR 79881, 79883 (December 31, 2002).
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TSA recognizes that the operations of all-cargo aircraft operators
and passenger aircraft operators are not identical and looks forward to
working with industry to ensure that proposed new requirements are
tailored to accommodate those differences.
I. Strengthen Foreign Aircraft Operator Security Measures
TSA currently requires foreign air carriers using aircraft of a
certain size and engaged in scheduled or public charter passenger
operations and landing or taking off in the United States to have a
TSA-approved security program. Foreign all-cargo air carriers are
subject to certain security requirements identified in a security
program issued by TSA under part 1550 in November 2003, including
random inspection of cargo. See 69 FR 3939 (Jan. 27, 2004). TSA is
proposing to amend Sec. 1546.101 to make these requirements permanent
and incorporate them into the foreign air carrier regulations in
recognition that these measures were implemented on an emergency basis
and should now be available for public comment as part of this
rulemaking.
TSA proposes to extend to foreign all-cargo air carriers
requirements to implement a level of security similar to that of U.S.
aircraft operators using the same size aircraft. Under the proposed
amendment to Sec. 1546.101, foreign air carriers would be required to
adopt and implement a security program acceptable to TSA for all
flights using an
[[Page 65268]]
all-cargo aircraft with a maximum certificated takeoff weight of more
than 45,500 kg that land or take off in the United States. This
security program would essentially parallel the requirements of the
proposed all-cargo program for U.S. aircraft operators. This NPRM also
proposes that foreign air carriers in all-cargo operations with
aircraft over 12,500 pounds and up to 45,500 kg also implement security
programs. This security program would essentially parallel the
requirements of the Twelve-Five Standard Security Program for U.S.
aircraft operators. The remaining proposed amendments would require
foreign air carrier security programs to provide a level of security
similar to that required of U.S. aircraft operators serving the same
airport and employ equivalent procedures. These procedures include
application of security measures to persons and property on board the
airplane under proposed Sec. 1546.202, measures for acceptance and
screening of cargo under proposed Sec. 1546.205, introduction of
security threat assessments for cargo personnel in the United States
under proposed Sec. 1546.213, and application of Known Shipper program
requirements under proposed Sec. 1546.215.
J. Enhancing Existing Requirements for IACs
The IAC, sometimes called a freight forwarder, is a crucial part of
the air cargo system, acting as an intermediary between the shipper and
the aircraft operator for approximately 80% of all air cargo shipped on
passenger aircraft in the United States. TSA estimates that there are
3,200 entities in the United States operating as IACs ranging from
large corporations to sole proprietors working out of their homes. All
IACs are required to maintain a security program known as the IACSSP
and are regulated under 49 CFR 1548. This NPRM proposes to expand the
definition of IAC to include businesses engaged in the indirect
transport of cargo on larger commercial aircraft, regardless of whether
the operation is conducted with a passenger aircraft or an all-cargo
aircraft.
In addition, TSA plans to strengthen security requirements for all
IACs. Specifically, TSA proposes to vet businesses more thoroughly
before they are authorized to do business as IACs, strengthen a
requirement for periodic recertification of IAC status, and strengthen
security requirements for accepting and processing air cargo. These
amendments to the rules governing IAC operations are intended to
improve the security of the air cargo supply chain by infusing better
security during the period between when a package leaves a shipper and
when it is presented to the aircraft operator.
A key element of TSA's proposed enhanced IAC standard security
program is a more thorough vetting of entities seeking authority to do
business as IACs. To strengthen the application process, TSA is
developing a web-based, centralized system for validating and
revalidating IACs. This system will improve security through an
enhanced, more effective vetting process while facilitating the
application, renewal and review process for the industry.
Upon implementation of the Internet-based system, TSA proposes,
under Sec. 1548.7, to require all businesses to use the system to
obtain initial IAC approval and to renew their approval. In doing so,
TSA proposes to require IAC applicants to submit more information about
themselves and their business than is currently required, including
basic corporate records. IACs would also be required to use the system
to notify TSA of any changes to their corporate structure and to renew
their status annually. These two steps will allow TSA to check whether
the applicant is a legitimate business and determine whether the
business or personnel poses a threat to transportation security.
These planned new IAC vetting tools, combined with the
centralization of information and automated communications, would
enable TSA to implement effectively a program to remove IAC
authorization from those persons found to be security risks during
revalidation or found to be out of compliance. In this NPRM, TSA
proposes procedures for withdrawing IAC security program approval.
TSA's envisioned electronic validation/revalidation process is also
indicative of the DHS commitment to improving security while promoting
best business practices. By automating much of the current paper-based
process, TSA would be able to accelerate the validation and
revalidation process, and industry would have an improved means of
communication with TSA that facilitates TSA's ability to notify IACs
and aircraft operators of pending actions.
K. Establishing New Training and Personnel Requirements
TSA is proposing to add regulatory text to: expand general security
requirements to include the protection of stored or en route cargo
under Sec. 1548.9; implement training under Sec. 1548.11; require
IACs to appoint Security Coordinators under Sec. 1548.13; authorize
IACs to receive and require IACs to confirm receipt of, and to
implement SDs and Information Circulars under Sec. 1548.15.
To ensure that IAC employees understand and are trained to
implement their security responsibilities, TSA is proposing to require
a comprehensive and recurrent training program for IACs. This program
would cover procedures for accepting, accessing and handling cargo
intended for transport on aircraft as well as record keeping,
acceptance and maintenance of Sensitive Security Information, and
communication protocols and other requirements in the security program.
As part of this initiative, TSA proposes to develop computer and/or
video-based instructional materials and a testing tool, including a
minimum standard that an employee will be expected to meet, and
protocols for situations where employees fail to meet the threshold.
Development of these training tools will coincide with the review and
consideration of this NPRM and revisions to the IACSSP; training
materials should be available to IACs shortly after these changes are
implemented. TSA believes that development and distribution of these
training tools will enhance regulatory compliance among the IAC
community. TSA invites public comment on the practical and economic
implications of requiring training of IAC and IAC agent personnel, and
on the best means for achieving a high training standard without
disrupting commerce.
TSA also proposes to require IACs to designate a Security
Coordinator at the corporate level. This individual will be responsible
for implementing the IAC's security program and will serve as the IAC's
primary point of contact for communication with TSA. The Security
Coordinator can be an existing employee with additional duties, but
someone in this role must be available 24 hours a day. Establishment of
IAC security coordinators is crucial to ensuring that TSA has an open
line of communication with this important class of regulated parties.
Currently, airport operators and aircraft operators must have Security
Coordinators.
As TSA is presented with new threat and vulnerability information,
TSA may need to require IACs to adjust their actions accordingly.
Currently, TSA communicates such information to regulated parties,
particularly to aircraft operators, by issuing SDs and Information
Circulars. TSA is proposing to implement a parallel capability for
IACs. IACs would be authorized to receive SDs, and required to verify
receipt of the directive or circular and
[[Page 65269]]
to notify TSA how they will comply with it. If an IAC is unable to
comply with a SD, it would be allowed to propose an alternative means
of compliance to TSA. Formalizing this two-way communication is
necessary to ensure sufficient measures are enacted when the threat
changes, such as during a heightened state of alert.
TSA also proposes to codify existing general requirements of the
IACSSP to require IACs to enhance the security of cargo stored or en
route to the aircraft operator. The proposal to enhance en route and
storage security is intended to ensure that IACs are held accountable
for securing the goods entrusted to them throughout those legs of the
supply chain for which they are responsible. Acceptable security
measures are likely to include standards for facility security, and
lock and seal requirements for conveyances. TSA invites suggestions
from interested parties regarding the most appropriate solutions
available.
V. Section-by-Section Analysis of Proposed Changes
Part 1540--Civil Aviation Security: General Rules
Section 1540.5--Terms Used in This Subchapter
TSA proposes to broaden the definition of ``Indirect Air Carrier''
by removing the word ``passenger,'' in order to expand TSA security
program requirements to freight forwarders that offer cargo to all-
cargo aircraft operations. The ASAC Air Cargo Security working groups
(``ASAC working groups'') recommended, and TSA agrees, that limiting
the definition of IAC to only those persons that tender cargo to a
passenger aircraft would be inconsistent with TSA's goal of extending a
security regime to all-cargo aircraft operations.
Sections 1540.201 Through 1540.209--Subpart C--Security Threat
Assessments
The ASAC working groups recommended, and TSA agrees, that the
identities of personnel who have unescorted access to cargo to be
shipped by air should be verified, and that such personnel should be
subject to appropriate background checks. TSA proposes to create a type
of personnel background check to be called a ``Security Threat
Assessment.'' This Security Threat Assessment would include a search by
TSA of domestic and international databases to determine the existence
of indicators of potential terrorist threats that meet the standards
set forth in proposed Subpart C of part 1540. This subpart is
procedural and sets out the scope and basic procedural requirements of
a Security Threat Assessment, including related fee requirements, and
provides for review of TSA determinations in connection with Security
Threat Assessments.
In proposed Sec. Sec. 1544.228, 1546.312, and 1548.15, operators
would be required to ensure that individuals who have unescorted access
to cargo undergo a Security Threat Assessment or other check. See the
discussion of Sec. 1544.228 below. This requirement would apply to
aircraft operators operating under full or all-cargo programs, the
corresponding foreign air carriers, and IACs that offer cargo to such
operators.
TSA's proposed Security Threat Assessment would require in Sec.
1540.203 that operators verify the individual's identity, after which
TSA would check their identity information against intelligence records
and other data related to terrorism. Operators would be required to
submit the individual's name, date and place of birth, social security
number and date of naturalization (if a naturalized citizen),
citizenship status, alien registration number (if applicable) and a
detailed description of the measures taken to verify the individual's
identity. After assessing this data to determine whether the individual
poses or is suspected of posing a threat to national security,
transportation security or of terrorism, under proposed Sec. 1540.205,
TSA would notify the regulated party and the individual. This
notification can take 3 forms:
1. Security Authorization for Unescorted Cargo. This notification
would indicate that TSA has not found that the individual presents a
known or suspected threat to security. Upon receipt of this
notification, the operator may authorize the individual unescorted
access to air cargo.
2. Initial Denial of Authorization for Unescorted Cargo Access.
This notification would be issued if TSA knew or suspected the
individual of posing a threat. The individual would be able to appeal
this determination through adjudication, but the individual would not
be permitted unescorted access to air cargo while the appeal is
pending.
3. Final Denial of Authorization for Unescorted Cargo Access. If
the individual was determined to present a threat after an initial
determination was issued and the individual has an opportunity to
appeal that determination, this notification would inform the operator
and the individual that he or she must be barred from having unescorted
access to air cargo.
Section 1540.207 would set out the appeals procedures under this
proposal to provide appropriate due process. Section 1540.209 would
establish the fee requirements necessary to recover associated costs of
the Security Threat Assessment. Under the proposed rule, the operator
would not permit the individual to handle cargo until the operator and
the individual were notified of a Security Authorization for Unescorted
Cargo Access by TSA. In cases where TSA issues a Denial of
Authorization for Unescorted Cargo Access, TSA may notify government
agencies for law enforcement or security purposes, or in the interests
of national security. TSA recognizes that the requirement for
background checks may cause affected businesses to alter their hiring
practices. However, TSA believes that the security benefits of this
requirement will be considerable and that TSA will be able to conduct
the initial assessments in an expeditious fashion, providing timely
notice to the regulated party.
Part 1542--Airport Security
Section 1542.1--Applicability of This Part
Currently, part 1542 applies to airport operators regularly serving
aircraft operators with full programs, private charter programs, or
partial programs under part 1544, or the corresponding foreign air
carriers under part 1546. Airport operators under part 1542 must have
and carry out security programs as described in that part and, under
Sec. 1542.5, must allow TSA to conduct inspections on the airport.
Airports that do not regularly serve such operations, or only serve
twelve-five programs, are not now subject to part 1542.
TSA proposes to revise Sec. 1542.1 by adding subparagraph (d) to
require that each airport that serves an aircraft operator with any
security program under part 1544 or a foreign air carrier under part
1546 would be subject to Sec. 1542.5. This would ensure that TSA could
inspect aircraft operators and foreign air carriers using an airport
that does not have a security program. It is critical that TSA have
access to those aircraft operations to determine whether they are in
compliance with the security requirements. Accordingly, the proposed
addition of subparagraph (d) would provide that TSA may enter an
airport that is not otherwise subject to part 1542 to conduct an
inspection on an aircraft operator or a foreign air carrier regulated
under parts 1544 and 1546, respectively. This proposal would not
require that any additional airport operators obtain security programs;
it
[[Page 65270]]
would only require that certain airport operators allow TSA to conduct
inspections under Sec. 1542.5.
Section 1542.205--Security of the Security Identification Display Area
(SIDA)
The ASAC working groups recommended, and TSA agrees, that, at
airports that currently have one or more SIDAs, the SIDA should be
extended or a new SIDA created to encompass air cargo operations. These
airports have complete programs under Sec. 1542.101(a) and serve the
passenger aircraft operators with full programs. Under current Sec.
1542.205, for each SIDA the airport operator must establish and carry
out a personnel identification system, subject each individual who has
unescorted access to a criminal history records check, and ensure each
individual with unescorted access is properly trained. Currently, air
cargo operations are not required to be conducted in SIDAs.
Under paragraph 1542.205(a) TSA is proposing to add a new paragraph
(a)(2) that expands the scope of operations that must be in a SIDA by
requiring airports with SIDAs either to expand existing or create new
SIDA to incorporate areas of cargo operations. These cargo operations
areas would include areas where cargo is regularly sorted, loaded, or
unloaded by certain aircraft operators or foreign air carriers. The
SIDA would only be extended to areas on airport grounds.
This proposed change would apply only to aircraft operations
conducted under a full program, and those operating under an all-cargo
program. Also, only areas of the airport that are regularly used for
these cargo operations would be made SIDAs. Areas on these airports
that are only occasionally used would not need to be SIDAs, but the
aircraft operator would be required to provide security for the area
under proposed Sec. 1544.225(d). Similarly, at airports that do not
have SIDAs pursuant to Sec. Sec. 1542.103(a) and 1542.205(a), aircraft
operators would provide security under proposed Sec. 1544.225(d). All
airport operators who would be affected by the proposed amendment of
paragraph 1542.205(a) currently have a SIDA and are already subject to
the requirements of Sec. 1542.103(a) and Sec. 1542.205.
TSA also proposes to revise current paragraph 1542.205(b)(2), which
states that an individual must undergo an employment history
verification under Sec. 1542.209 before gaining unescorted access to a
SIDA. This paragraph would be changed to clarify that a criminal
history records check is required pursuant to Sec. 1542.209 rather
than an employment history verification. This clarification would make
the text of Sec. 1542.205(b)(2) consistent with that of Sec.
1542.209.
Finally, TSA proposes to add new paragraph 1542.205(c). This
paragraph would make it clear that an airport operator that is not
required to have a complete program under Sec. 1542.103(a) is not
required to establish a SIDA under proposed Sec. 1542.205.
The security measures required in a SIDA provide additional
safeguards against unauthorized persons from gaining access to cargo
operations where they could tamper with the cargo or stow away in
attempt to take over the aircraft in flight, or introducing into cargo
an unauthorized explosive, incendiary, or destructive substance or
item.
Part 1544--Aircraft Operator Security: Air Carriers and Commercial
Operators
Section 1544.101--Adoption and Implementation
The ASAC working groups recommended, and TSA agrees, that all-cargo
aircraft operations conducted in aircraft with a maximum certificated
take-off weight of more than 45,500 kg (100,309.3 pounds) should be
subject to certain security requirements beyond those applicable to
such operations under the current Twelve-Five Standard Security
Program. TSA has already determined that this size aircraft is of a
size that could cause significant damage if taken over and used as a
weapon, and thus when this size aircraft is used in private charter
passenger operations it must be operated under a private charter
security program.\21\ Additionally, the 45,500 kg threshold is
consistent with international security standards adopted by the
International Civil Aviation Organization. Accordingly, to ensure
consistent treatment of similar aircraft, TSA proposes, in Sec.
1544.101(h) and (i), to apply the same threshold by requiring that all-
cargo operations in such aircraft be covered under an all-cargo
program. Note that such aircraft carry both cargo and certain other
persons (not passengers) in accordance with FAA rules. 14 CFR 121.547
and 121.583. These persons handle the cargo and perform other
operations related to the flight.
---------------------------------------------------------------------------
\21\ 67 FR 41635 (June 19, 2002), amended by 67 FR 79861 (Dec.
31, 2002).
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Operations under an all-cargo program would no longer be under the
current twelve-five program. Accordingly, TSA proposes to amend
paragraph 1544.101(d)(1) to conform to the addition of the all-cargo
program by providing that the twelve-five program does not apply for
operations under an all-cargo program.
In addition, TSA proposes to change the requirement for a twelve-
five program from aircraft with a maximum certificated takeoff weight
``of 12,500 pounds or more'' to ``more than 12,500 pounds.'' This
section initially was based on the requirement in ATSA section 132(a)
that TSA implement a security program for charter air carriers for
aircraft having a maximum certificated takeoff weight of 12,500 pounds
or more. In Vision 100, section 606(a), this was changed to require
security programs for aircraft with a weight of more than 12,500.\22\
This proposed amendment is consistent with Congressional intent. Vision
100 also codified the requirement for charter air carrier security
programs in 49 U.S.C. 44903(l)(1).
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\22\ Century of Aviation Reauthorization Act, Pub. L. 108-176.
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Vision 100 section 606(a) also codifies in new 49 U.S.C.
44903(l)(2) an exemption for armed forces charters so they are not
subject to the requirements of 44903(l)(1). Such military operations
are not subject to the requirements of Sec. 1544.101(d) or (e) and no
TSA rule change is needed to implement this provision.
TSA also proposes to amend paragraph 1544.101(e)(1), which lists
the elements of the twelve-five program. TSA proposes the following
enhancements to the twelve-five program for all-cargo operations: Sec.
1544.202 (Persons and property onboard the all-cargo aircraft) and
Sec. 1544.205(a), (b), and (d) (Acceptance and screening of cargo:
Preventing or deterring the carriage of any explosive or incendiary,
Screening and inspection of cargo, and Refusal to transport).
Section 1544.202--Persons and Property Onboard the All-Cargo Aircraft
Section 1544.201 currently requires passenger operations under full
programs or private charter to screen, inspect, and provide other
security for persons who board their aircraft and their accessible
property. This section is geared largely to cover screening of
passengers and their accessible property, though it also covers
security measures for other persons boarding aircraft operated under
full programs or private charter programs.
TSA proposes to add new Sec. 1544.202. This section would require
aircraft operators to apply the security measures in their security
programs to persons who board the aircraft, and to their property. This
proposed requirement is
[[Page 65271]]
intended to prevent persons who may pose a security threat from
boarding and to prevent or deter the carriage of unauthorized
explosives, incendiaries, and other destructive substances or items.
This section would authorize TSA to incorporate into the security
programs screening for unauthorized persons, or substances or items
that could be used to pose a threat to transportation security.
TSA proposes to incorporate this requirement into both the twelve-
five program for all-cargo operations and the proposed new all-cargo
program. Such operators currently apply security measures to persons
who board their aircraft under SDs that TSA has issued in response to
threats. TSA envisions these measures to continue under this proposed
rule.
Section 1544.205--Acceptance and Screening of Cargo
The ASAC working groups recommended, and TSA agrees, that security
measures for and screening of air cargo should be enhanced. TSA
proposes to amend paragraphs 1544.205(a), (b), (c), and (d) to broaden
the scope of security measures that may be required in an aircraft
operator security program, and to reference the Known Shipper program.
Specifically, TSA is proposing to require aircraft operators
operating under a full, all-cargo, or twelve-five security program to
inspect cargo for unauthorized persons, explosives, incendiaries, and
other destructive substances or items. TSA believes that this amendment
is necessary to prevent the introduction of stowaway hijackers,
explosive devices, or other threats into air cargo. Carriers under
these programs are currently required to inspect cargo to protect
against such potential threats. This proposed provision would not alter
that requirement but is adding it to the CFR and providing industry an
opportunity for public comment. The security measures in proposed Sec.
1544.205(a) and (b) are the same as those incorporated into SDs that
have been issued and are currently being carried out by aircraft
operators with full programs and twelve-five programs.
Proposed Sec. 1544.205(b) would authorize TSA to incorporate into
an aircraft operator's security program screening of cargo for
unauthorized persons, or substances or items the intentional misuse of
which could pose a threat to transportation security.
Current Sec. 1544.205(c) provides that the aircraft operator must
prevent access by persons other than an aircraft operator employee or
its agent. TSA is proposing to add that persons authorized by the
airport operator or host government also may have access. Such
individuals as Customs inspectors and airport law enforcement officers
must have access to such areas.
TSA also proposes to strengthen the cargo acceptance requirements
applicable to aircraft operators operating under a full program or an
all-cargo program. Pursuant to proposed Sec. 1544.205(e), an aircraft
operator would be permitted to accept cargo for air transportation only
from entities that have comparable security programs. TSA believes that
this provision is necessary to secure the aircraft by strengthening the
integrity of the air cargo supply chain. These requirements parallel
those currently applied to operations conducted under a full program.
TSA also proposes, in Sec. 1544.205(f), to require each aircraft
operator to carry out the requirements of its security program for
cargo to be loaded on its aircraft outside the United States. Not all
of the part 1544 requirements can be carried out in other countries.
Rather, TSA works with the host governments, under international
agreements, to ensure that the security measures in place provide the
appropriate level of security.
Section 1544.225--Security of Aircraft and Facilities
The ASAC working groups recommended, and TSA agrees, that
additional steps should be taken to assure that attempted unauthorized
access to the aircraft and cargo is detected and prevented.
Proposed paragraph 1544.225(d) would require the operators of
aircraft operating under a full program or an all-cargo program to
prevent unauthorized access to the operational area of the aircraft
while loading or unloading cargo. This requirement would apply to
operations conducted both within and outside a SIDA. TSA recognizes
that current paragraph 1544.225(b) requires all aircraft operators
operating under security programs to prevent unauthorized access to
each aircraft. Proposed paragraph (d) would broaden this requirement,
for aircraft operated under a full or an all-cargo program, to clarify
that unauthorized access must be prevented to the operational area
around the aircraft during cargo loading and unloading operations. This
measure would provide an additional layer of protection around the
aircraft.
Section 1544.228--Security Threat Assessments for Cargo Personnel
TSA proposes to require persons who have unescorted access to cargo
to undergo a security check. This would require that they comply with
the requirements of subpart C of part 1540 by successfully completing a
Security Threat Assessment, or that they undergo a criminal history
records check under current rules, or other approved Security Threat
Assessment. This requirement would apply to aircraft operators under a
full program or an all-cargo program.
TSA believes that this step is necessary to reduce the likelihood
of a terrorist gaining employment in a position with access to cargo
for the purpose of introducing an explosive, stowaway hijacker, or
other destructive substance into air cargo. Extending Security Threat
Assessments to these individuals would allow for a comparable degree of
security for all personnel with access to cargo on behalf of regulated
parties from the time it is picked up from a shipper to the time it is
loaded on the aircraft.
This proposal would allow for another Security Threat Assessment to
be approved by TSA. For instance, if the individual had undergone a
Security Threat Assessment for the issuance of a hazardous materials
endorsement on a commercial drivers license in accordance with 49 CFR
1572.5, TSA could approve that as acceptable for compliance with
proposed Sec. 1544.228.
TSA has proposed a fee structure and collection process to fund
some or all of the costs associated with the proposed Security Threat
Assessment requirements. The proposed fee may be found at section VII
titled Fee Authority for the Security Threat Assessment of this NPRM.
Section 1544.229--Fingerprint-Based Criminal History Records Checks
(CHRC): Unescorted Access Authority, Authority To Perform Screening
Functions, and Authority To Perform Checked Baggage or Cargo Functions
The ASAC working groups recommended, and TSA agrees, that the
identities of persons who perform certain key actions with air cargo
should be subject to verification and that the backgrounds of these
persons should be checked. TSA proposes to broaden the background check
requirements by revising paragraph 1544.229(a)(1)(iii)(B) to include a
cross-reference to the new paragraph 1544.229(a)(1)(iii)(C). The new
paragraph requires persons who screen cargo that will be carried on an
aircraft of an operator required to screen cargo under part 1544 to
submit to a CHRC under Sec. 1544.229. Currently, Sec. 1544.229
applies, in pertinent part, only to persons having authority to screen
cargo, in the United States, of an
[[Page 65272]]
aircraft operator required to screen passengers under this part, or
serving as an immediate supervisor of such an individual, when the
cargo will be carried in the cabin of the aircraft. Accordingly, only
cargo screeners for operators with full programs currently are subject
to Sec. 1544.229. This new requirement parallels the current
requirement that persons who screen passengers and carry-on baggage
(accessible property) must comply with Sec. 1544.229. TSA also
proposes to require that cargo screeners for operators with all-cargo
programs be subject to the criminal history records check requirements
of Sec. 1544.229. This change would provide an additional protection
against individuals who screen cargo for the largest all-cargo aircraft
from using their positions to introduce unauthorized explosives,
incendiaries, persons, or destructive substances or items into the
cargo or aircraft.
Section 1544.239--Known Shipper Program
Proposed Sec. 1544.239 would codify the Known Shipper program in
the federal regulations. The ``known shipper'' concept, which
differentiates cargo being shipped by recognized entities from that
originating with unknown parties, has been a fundamental element of air
cargo security since 1976. The program has also been recognized as a
global standard by the International Air Transport Association (IATA)
and was recognized by the United States Congress as a form of screening
in ATSA. Aircraft operators operating under a full program would be
required to have a Known Shipper program including measures to ensure
the shippers' validity and integrity, to inspect or further screen
cargo, and to provide shipper data to TSA. Aircraft operators must meet
these requirements in accordance with the standards detailed in their
security program. The Known Shipper program would apply to operations
under full programs.
Aircraft operators with full programs are already required to
maintain a Known Shipper program under their security programs. TSA
believes that it is prudent to set out the major features of this
program in regulation at this time. Additional changes to how the Known
Shipper program must operate may be included in revisions to the
security program.
Part 1546--Foreign Air Carrier Security
Section 1546.101--Adoption and Implementation
The ASAC working groups recommended, and TSA agrees, that cargo
operations of foreign air carriers that land or take-off in the United
States should be required to conform to essentially the same
requirements as those applicable to comparable operations by domestic
aircraft operators. TSA proposes to broaden the provisions of Sec.
1546.101 to require each foreign air carrier landing or taking off in
the United States to adopt and carry out an appropriate security
program for each covered all-cargo operation. TSA proposes to establish
the requirements of an appropriate security program for a covered
foreign air carrier conducting all-cargo operations for operations in
aircraft having a maximum certificated take-off weight greater than
45,500 kg (100,309.3 pounds) (analogous to a U.S. all-cargo program
under part 1544), and for operations in aircraft having a maximum
certificated take-off weight greater than 12,500 pounds up to 45,500 kg
(100,309.3 pounds) (analogous to a U.S. twelve-five program in all-
cargo operations under part 1544).
Section 1546.103--Form, Content, and Availability of Security Program
TSA proposes to make an administrative change to paragraph
1546.103(a) by removing the word ``passenger'' and changing ``U.S. air
carriers'' to ``U.S. aircraft operators.''
In paragraph 1546.103(b), TSA proposes to add paragraphs 1546.101
(e) and (f) to the introductory text. This proposed change broadens the
requirements to embrace cargo operations.
Section 1546.202--Persons and Property Onboard the Airplane
This proposed new section parallels the requirements of the
proposed aircraft operations in the United States. The rationale for
this addition is described in the section-by-section analysis for Sec.
1544.202.
Section 1546.205--Acceptance and Screening of Cargo
The ASAC Working groups recommended, and TSA agrees, that,
consistent with recognition of the sovereignty of foreign states,
aviation security regulations should be clarified with respect to the
duty of foreign air carriers for the security of air cargo loaded in or
destined for the United States. TSA proposes to amend paragraph (a) and
add paragraphs (c), (d), (e), and (f) to Sec. 1546.205. These
paragraphs are parallel to those for U.S. aircraft operators in
proposed Sec. 1544.205.
Proposed paragraph 1546.205(d), ``Screening and inspection of cargo
in the United States,'' would provide that each foreign air carrier
must ensure that, as required in its security program, cargo is
screened and inspected for explosives, incendiaries, unauthorized
persons, and other destructive substances or items as provided in the
foreign air carrier's security program, in accordance with Sec.
1546.207, and Sec. 1546.215 if applicable, before loading it on its
aircraft in the United States.
Proposed paragraph 1546.205(e), ``Acceptance of cargo in the United
States,'' would provide that each foreign air carrier may accept cargo
in the United States only from the shipper, or from an aircraft
operator, foreign air carrier, or IAC operating under a security
program under this chapter, with a comparable cargo security program as
provided in its security program.
Proposed paragraph 1546.205(f) would provide that, for cargo to be
loaded on its aircraft outside the United States, each foreign air
carrier must carry out the requirements of its security program.
Section 1546.213--Security Threat Assessment for Cargo Personnel in the
United States
TSA proposes to require persons who are not required to complete a
CHRC under Sec. Sec. 1542.209, 1544.229, or 1544.230 and who have
unescorted access to cargo, to comply with the requirements of subpart
C of part 1540 by successfully completing a Security Threat Assessment.
This requirement would apply to foreign air carriers under paragraphs
1546.101(a), (b), or (e). The rationale for this security measure
parallels that rationale described in the section-by-section analysis
for Sec. 1544.228.
Section 1546.215--Known Shipper Program
TSA proposes to codify the Known Shipper program for the foreign
air carriers just as we proposed in Sec. 1544.239. The rationale for
adding this new section is the same as stated in the section-by-section
analysis for Sec. 1544.239.
Part 1548--Indirect Air Carrier Security
Section 1548.5--Adoption and Implementation of the Security Program
TSA proposes to revise paragraphs (a), (b), and (c) of Sec. 1548.5
regarding the adoption and implementation of the
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IACSSP. The proposed change to paragraph 1548.5(a) would specify that
no IAC may offer cargo to an aircraft operator operating under a full
program or an all-cargo program specified in part 1544, or to a foreign
air carrier operating a passenger operation under paragraphs
1546.101(a) and (b) or an all-cargo program under paragraph
1546.101(e), unless that IAC has and carries out an approved security
program under part 1548.
The proposed change to paragraph 1548.5(b) would broaden the scope
of screening actions that may be required in an individual IAC's
security program. IACs having cargo screening responsibilities under
current Sec. 1548.5(b)(1) and their approved security programs must
``[p]rovide for the safety of persons and property traveling in air
transportation against acts of criminal violence and air piracy and the
introduction of any unauthorized explosive or incendiary into cargo
aboard a passenger aircraft.'' TSA proposes to revise this requirement
to provide that the IAC must ``provide for the security of persons and
property traveling in air transportation against acts of criminal
violence and air piracy and the introduction of any unauthorized
person, explosive, incendiary, or other destructive substances or items
as provided in the IAC's security program.''
This provision would also broaden the duty of IACs to include cargo
to be carried on an aircraft operated under an all-cargo program rather
than solely in passenger operations. This change parallels the cargo
security requirements in proposed Sec. Sec. 1544.205 and 1546.205. It
authorizes TSA to incorporate into an IAC's individual security program
screening of cargo for unauthorized persons, or substances or items the
intentional misuse of which could pose a threat to transportation
security. Under Sec. 1548.5(b)(1)(i), this requirement would apply
from the time the IAC accepts the cargo to the time it transfers the
cargo to an entity that is not an employee, agent, contractor, or
subcontractor of the IAC. This proposed provision clarifies the
existing IAC security program requirement that the IAC is responsible
for carrying out security measures under this part when its employee,
agent, contractor or subcontractor fulfills its function. Section
1548.5(b)(1)(ii) would apply while the cargo is stored, en route, or
otherwise being handled by an employee, agent, contractor, or
subcontractor of the IAC. Section 1548.5(b)(1)(iii) would apply
regardless of whether the IAC has or ever has physical possession of
the cargo. At times, IACs perform cargo services that may include
arranging for transportation of cargo by other entities. This proposed
amendment clarifies that the IAC is responsible for these shipments
even though the IAC, itself, does not have physical possession.
Proposed paragraph 1548.5(b) would also require the IAC to assure that
its employees, agents, contractors, and subcontractors comply with the
requirements of the IAC's security program. This provision currently is
in the IACs' standard security programs.
The proposed change to paragraph 1548.5(c) would assure that the
content of each IAC security program reflects the scope of security
measures established under proposed Sec. 1548.5(b), references Known
Shipper program requirements that are proposed to be codified in Sec.
1548.17, and establishes a new requirement that each IAC security
program include documentation of the procedures and curriculum used to
accomplish the training of persons who accept, store, transport or
deliver cargo for or on behalf of the IAC. This training would be
required under proposed new Sec. 1548.11.
Section 1548.7--Approval, Amendment, Annual Renewal, and Withdrawal of
Approval of the Security Program
TSA proposes to restructure and revise this section both to reflect
actual practices and enhance the security of this regulatory regime.
The proposed revision of paragraph 1548.7(a) accounts for the fact that
TSA has developed the IACSSP. Consistent with current practices, rather
than submitting a security program for TSA approval, an entity would
request approval to operate under the IACSSP. The proposed addition
explains how an applicant must seek approval to operate under the
IACSSP, including a record-keeping requirement and a list of
information that the applicant must submit to TSA for consideration.
Paragraph 1548.7(a) also proposes the process that TSA will follow to
approve an applicant's operation under a security program, proposes
that approvals would be effective for one year, and provides that the
approved IAC must notify TSA of changes to the initial application. TSA
would use the information submitted by IAC applicants to verify their
legitimacy through a check of publicly-available records and to cross
check that information against data on known and suspected terrorists.
Under current practices, TSA issues an IACSSP to expire each year.
The proposed addition of paragraph 1548.7(b) presents the processes an
IAC must follow to annually seek renewed TSA approval to operate under
the IACSSP. Annual renewal would be a continuation, and codification,
of the current practice. Other entities regulated by a TSA security
program, such as aircraft operators and airports, must obtain FAA
certification. IACs are not required to do so. Additionally, TSA has
found that the IAC industry has a high degree of turnover. Accordingly,
TSA proposes in paragraph 1548.7(b) that the IAC must submit to TSA for
renewal at least 30 calendar days prior to expiration of the IACSSP as
well as other standards for the submission. The proposed renewal
standards also include that the IAC certify that it has provided TSA
with its most up-to-date information and acknowledge that intentional
falsification of the information may be subject to civil and criminal
penalties. The addition further proposes the standard for TSA to renew
the approval of an IACSSP. Proposed Sec. 1548.7(b) otherwise codifies
the existing security program required for annual renewal.
The proposed additions of paragraphs 1548.7(c), (d), and (e) revise
the existing requirements of paragraphs 1548.7(b), (c) and (d),
respectively. Many of the changes parallel changes made previously to
similar requirements for airport operator security programs and
aircraft operator security programs in Sec. Sec. 1542.105 and
1544.105. In part, the new paragraphs have been moved to ensure that
the structure of the section remains logical. Proposed Sec. 1548.7(c)
closely parallels the existing Sec. 1548.7(b), but adds Sec.
1548.7(c)(6)--allowing a group of IACs to submit a proposed amendment
together. Proposed paragraph 1548.7(d) is the same as the existing
paragraph 1548.7(c). The proposed paragraph 1548.7(e) revises the
existing Emergency Amendments (EA) standards of the existing paragraph
1548.7(d). The proposed paragraph is separated into three subparagraphs
for easier reading. Proposed paragraph 1548.7(d)(1) substitutes
``aviation security'' for ``safety in air transportation or in air
commerce'' to clarify the breadth of TSA's EA authority. Proposed
paragraph 1548.7(d)(2) reorganizes existing EA standards to emphasize
immediate effectiveness and that TSA will provide a brief statement
regarding the rationale for the EA. Finally, paragraph 1548.7(d)(3)
provides the IAC with 15 days to file a petition for reconsideration
but provides that the filing of the petition does not stay the
effective date of the amendment.
TSA proposes to codify procedures for TSA to withdraw an IAC's
approval to operate under the IACSSP with the
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addition of paragraph 1548.7(f). The proposed standard for withdrawal
is a TSA determination that the operation is contrary to security and
the public interest. Proposed paragraph 1548.7(f) provides procedures
for notice, response, and petition for reconsideration. The affected
IAC would be able to request a stay of the withdrawal. TSA also
proposes the codification of emergency withdrawal procedures. This
proposal creates procedural guidelines to implement withdrawal of a
security program and affords due process to the IAC. The emergency
procedures would allow the IAC to submit a petition for
reconsideration, but the filing of a petition will not stay the
effective date of withdrawal.
Proposed paragraph 1548.7(g) adds provisions for proper service of
documents in the withdrawal proceedings. Procedures for time extensions
are proposed at paragraph 1548.7(h).
Section 1548.9--Acceptance of Cargo
TSA proposes to revise paragraph 1548.9(a) to broaden the scope of
the IAC's duty to prevent or deter the carriage of unauthorized persons
or destructive substances or items on board an aircraft to the existing
requirements regarding explosives and incendiaries. With the expanded
definition of IAC, this provision proposes to require IACs to carry out
these procedures whenever offering cargo for air transportation on all-
cargo aircraft, as well as a passenger aircraft under a full program.
This proposed section further provides that, subject to TSA approval of
the provisions of the IAC's security program. Additionally the proposed
amendment would add a requirement that the IAC request the shipper's
consent to search or inspect the cargo.
TSA proposes to revise paragraph 1548.9(b) by adding all-cargo
aircraft operations to the search and inspection requirements. Under
current paragraph 1548.9(b), this duty extends only to cargo that is
intended for shipment aboard a passenger aircraft. By removing the word
``passenger,'' this paragraph would extend to cargo for shipment aboard
all-cargo aircraft operations as well. Proposed paragraph 1548.9(b)
would delete the requirement, found in current paragraph 1548.9(b),
that the IAC must search or inspect cargo. This amendment is primarily
aimed at creating a parallel structure to the requirements found in
parts 1544 and 1546.
Section 1548.11--Training and Knowledge for Individuals with Security-
Related Duties
The ASAC working groups recommended, and TSA agrees, that certain
employees of IACs, and of agents, contractors, and subcontractors
performing services for IACs, should be subject to security-related
training. These enhanced requirements for training covers individuals
who perform security-related duties to ensure the appropriate security
standards are met.
TSA proposes to add new Sec. 1548.11(a), which specifies that an
IAC must not use any individual to perform any security-related duties
to meet the requirements of its security program unless the individual
has received training as specified in its security program. This
requirement would cover employees of the IAC as well as employees of
any agent, contractor, or subcontractor performing security-related
duties for the IAC.
Under proposed Sec. 1548.11(b), additional training would be
specified for individuals who accept, handle, transport, or deliver
cargo for or on behalf of the IAC. This training must include, at a
minimum, requirements contained in the applicable provisions of part
1548, applicable SDs and Information Circulars, the approved airport
security program applicable to their location, and the aircraft
operator's or IAC's security program to the extent that such
individuals need to know in order to perform their duties.
Proposed paragraph 1548.11(c) would require annual recurrent
training of covered individuals in these elements of knowledge.
Pursuant to proposed Sec. 1548.7(a), initial training of the
identified individuals performing duties for the IAC must be completed
before an IAC may begin operations under its approved security program.
Section 1548.13--Security Coordinators
The ASAC working groups recommended, and TSA agrees, that
communication among regulated aircraft operators, airport operators,
TSA, and IACs concerning security matters must be improved, and
responsibility for compliance by IACs with TSA security requirements
must be clarified. TSA proposes to require each IAC to designate and
use an Indirect Air Carrier Security Coordinator (IACSC). The IAC would
be required to appoint the IACSC at the corporate level, and IACSC
would be directed to serve as the IAC's primary contact for security-
related activities and communications with TSA, as set forth in the
IACSSP. Either the IACSC or an alternate IACSC would be required to be
available on a 24-hour basis. This proposed addition parallels existing
security coordinator positions required of airport operators in Sec.
1542.3 and aircraft operators in Sec. 1544.215.
Section 1548.15--Security Threat Assessments for Individuals Having
Unescorted Access to Cargo
The ASAC working groups recommended, and TSA agrees, that the
identities of personnel who have unescorted access to cargo to be
shipped by air should be verified, and that such personnel should be
subject to an appropriate background check. TSA proposes to add new
Sec. 1548.15, which would prohibit each IAC from authorizing any
individual unescorted access to cargo until the IAC has verified the
identity of that individual in a manner acceptable to TSA, and that
individual has successfully completed a Security Threat Asses