[Federal Register: May 21, 2003 (Volume 68, Number 98)]
[Rules and Regulations]
[Page 27747-27752]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21my03-6]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1510 and 1511
[Docket No. TSA-2001-11120 and TSA-2002-11334; Amendment Nos. 1510-2
and 1511-1]
RIN 1652-AA29
Temporary Suspension of the September 11th Security Fee and the
Aviation Security Infrastructure Fee
AGENCY: Transportation Security Administration (TSA), DHS.
ACTION: Temporary final rule.
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SUMMARY: The Transportation Security Administration (TSA) is issuing
this rule to temporarily suspend the September 11, 2001, Passenger
Civil Aviation Security Service Fee and the Aviation Security
Infrastructure Fee (ASIF) during the period beginning June 1, 2003, and
ending September 30, 2003, as provided in Public Law 108-11, enacted on
April 16, 2003, titled, ``Emergency Wartime Supplemental Appropriations
Act, 2003'' (Appropriations Act).
TSA interprets the Appropriations Act to prohibit TSA from
requiring passengers to pay the September 11th Security Fee if they
purchase air transportation during the suspension period, regardless of
whether the air transportation actually takes place during the
suspension period. Accordingly, TSA will not impose the September 11th
Security Fee on air transportation purchased from 12 a.m., Eastern
Daylight Time, on June 1, 2003, through 11:59 p.m., Eastern Daylight
Time, on September 30, 2003.
The Appropriations Act also prohibits TSA from imposing the ASIF
during the suspension period. Therefore, air carriers and foreign air
carriers engaged in air transportation will not incur any obligations
to make ASIF payments to TSA for the months of June, July, August, and
September of 2003, which otherwise would have been required to be paid
to TSA by the last day of July, August, September, and October of 2003,
respectively.
DATES: This rule is effective from June 1, 2003, through September 30,
2003.
FOR FURTHER INFORMATION CONTACT: Randall Fiertz, Office of Revenue,
Office of Finance and Administration, Transportation Security
Administration Headquarters, West Building, Floor 5, TSA-14, 400
Seventh Street, SW., Washington, DC 20590; e-mail: TSA-Fees@dhs.gov,
telephone: 571-227-2323; or Susan Truax, Office of the Chief Counsel,
Transportation Security Administration Headquarters, West Building,
Floor 8, TSA-2, 400 Seventh Street, SW., Washington, DC 20590; e-mail:
Susan.Truax@dhs.gov, telephone: 571-227-1996.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Document
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
individuals in the FOR FURTHER INFORMATION CONTACT section. Make sure
to identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within the
TSA's jurisdiction. Any small entity that has a question regarding this
document may contact the individuals listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's web page at http://www.sba.gov/advo/laws/law_lib.html
.
Good Cause for Immediate Adoption
This action is being taken without providing the opportunity for
notice and comment, and it provides for an effective date less than 30
days after publication in the Federal Register.
Section 44940(d)(1) of title 49, U.S.C. explicitly exempts the
imposition of the civil aviation security fees authorized in section
44940 from the procedural rulemaking notice and comment procedures set
forth in 5 U.S.C. 553 of the Administrative Procedure Act (APA). Apart
from that exemption, the APA allows an agency to forego notice and
comment rulemaking when ``the agency for good cause finds * * * that
notice and public procedures thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b). TSA finds good
cause under 5 U.S.C. 553 that notice and comment are impracticable and
contrary to the public interest before issuing this rule. Immediate
action is necessary to provide sufficient time to direct and foreign
air carriers to implement any necessary changes in their business
practices before the beginning of the suspension period.
Further, as the Appropriations Act mandates the effective dates for
the suspension period of the civil aviation security fees, the
Administrator finds
[[Page 27748]]
that good cause exists under 5 U.S.C. 553(d) for making this final rule
effective less than 30 days after the date of publication in the
Federal Register.
Background
Under 49 U.S.C. 44940 and the Transportation Security Regulations
at 49 CFR parts 1510 and 1511, respectively, air carriers and foreign
air carriers are required to pay to TSA fees known as the September
11th Security Fee and the Aviation Security Infrastructure Fee (ASIF).
The September 11th Security Fee is a fee in the amount of $2.50 per
enplanement imposed by TSA on passengers of domestic and foreign air
carriers in air transportation, foreign air transportation, and
intrastate air transportation originating at airports in the United
States. This fee is limited to $2.50 per enplanement for up to two
enplanements (or up to $5) per one-way trip or four enplanements (or up
to $10) per round trip. 49 CFR 1510.5(a). Section 118 of the Aviation
and Transportation Security Act (ATSA) (Pub. L. 107-71; 11/19/2001)
authorized TSA to impose the September 11th Security Fee to help pay
TSA's costs of providing civil aviation security services. Under 49 CFR
1510.9(a) and (b), direct air carriers and foreign air carriers must
collect from each passenger a September 11th Security Fee on air
transportation sold on or after February 1, 2002.
The ASIF is a fee imposed by TSA on air carriers and foreign air
carriers engaged in air transportation, foreign air transportation, and
intrastate air transportation, based on each carrier's security costs
incurred in the year 2000. Section 118 of the ATSA authorized TSA to
impose the ASIF, to the extent that the September 11th Security Fee was
insufficient to pay TSA's costs of providing civil aviation security
services. Under 49 CFR 1511.5 and 1511.7(b), each air carrier and
foreign air carrier engaged in air transportation must pay to TSA the
ASIF incurred for each month by the last calendar day of the following
month. For months up to and including September of 2004, the payment is
8.333 percent of the total amount of the carrier's costs of screening
passengers and property transported by passenger aircraft in the United
States during calendar year 2000.
On April 16, 2003, the President signed into law the Appropriations
Act, which among other things, prohibits the Under Secretary for Border
and Transportation Security (BTS) of the Department of Homeland
Security from imposing the September 11th Security Fee and the ASIF
during the period beginning June 1, 2003, and ending September 30, 2003
(suspension period). TSA, which is an agency within the Department of
Homeland Security and operating under the direction of the Under
Secretary of BTS, is the agency charged with imposing these fees by
regulation. Therefore, TSA is publishing this rule to temporarily
suspend these fees as required by the Appropriations Act. Unless
otherwise defined in this document, any terms used in this document
have the meaning set forth in 49 CFR parts 1510 and 1511.
Discussion of the Rule
During the suspension period from June 1, 2003, through September
30, 2003, TSA is suspending Sec. Sec. 1510.5 and 1510.9(a) through
(c), as well as Sec. Sec. 1511.5(a) through (c) and 1511.7(b), and
adding new Sec. Sec. 1510.23 and 1511.15, respectively.
Suspension of the September 11th Security Fee
The Appropriations Act prohibits TSA from imposing the September
11th Security Fee during the suspension period. TSA interprets this
provision to mean that TSA may not require passengers to pay the
September 11th Security Fee if they purchase air transportation
(tickets) during the suspension period, regardless of whether the air
transportation actually takes place during the suspension period.
Accordingly, TSA is establishing the following requirements governing
direct and foreign air carrier compliance with 49 CFR part 1510 during
the suspension period.
Tickets Purchased During the Suspension Period. Under TSA's
regulation at 49 CFR 1510.9, where a passenger purchases a ticket from
a direct or foreign air carrier, or from the carrier's agent such as a
travel agent, the carrier must collect the September 11th Security Fee
from the passenger at that time. Notwithstanding 49 CFR 1510.9(a) and
(b), a direct air carrier or foreign air carrier must not collect the
September 11th Security Fee from any passenger for air transportation
sold during the suspension period. This means that when a passenger
purchases a ticket from a direct or foreign air carrier or its agent
and the passenger pays in full for the ticket at any time from 12 a.m.,
Eastern Daylight Time, on June 1, 2003 through 11:59 p.m., Eastern
Daylight Time, on September 30, 2003, the carrier must not collect the
September 11th Security Fee from the passenger. Since 49 CFR 1510.5(c)
imposes the security fee on passengers obtaining tickets by redeeming
frequent flyer awards, the carrier must not collect the fee on such
tickets issued during the suspension period. In addition,
notwithstanding 49 CFR 1510.9(c), the direct or foreign air carrier
will not incur any obligation to pay the amount of such uncollected fee
to TSA.
Under 49 CFR 1510.9(d), direct and foreign air carriers may not
collect the September 11th Security Fee unless required by part 1510.
Therefore, if a direct or foreign air carrier collects a September 11th
Security Fee from a passenger who purchases a ticket during the
suspension period, the carrier must refund the fee to the passenger.
Direct and foreign air carriers must continue to collect the
September 11th Security Fee on air transportation purchased by
passengers through 11:59 p.m., Eastern Daylight Time, on May 31, 2003,
even if the flight for which the transportation is purchased is to be
operated during the suspension period.
Tickets Reissued During the Suspension Period. If a passenger
purchases a ticket before the suspension period begins and the carrier
reissues a replacement ticket during the suspension period without any
changes to the original itinerary, the carrier continues to be
responsible for collecting the amount of the September 11th Security
Fee that applied upon the initial purchase of the ticket. If, as a
result of the reissuance, however, the ticket is repriced during the
suspension period, TSA considers the date the ticket was reissued to be
the date the passenger purchased the ticket. Therefore, the September
11th Security Fee will not apply to the reissued ticket. Repricing a
ticket means a transaction in which the itinerary of a paid ticket is
revised due to voluntary changes made by the passenger and the ticket
is reissued to determine the new price of the itinerary. Section
1510.5(c) of 49 CFR imposes the fee on tickets obtained by redeeming
frequent flyer awards. However, upgrades using these awards are not
charged an additional fee. Therefore, redeeming these awards during the
suspension period for cabin upgrades must not be treated as repricing
the ticket and the fee must continue to be charged. Free upgrades also
do not constitute repricing and therefore do not result in refund of
the fee.
Example 1. A passenger purchases a round-trip ticket before the
suspension period with two enplanements per one-way trip (for a
total of four enplanements) and, due to changes made by the
passenger, the carrier reissues the ticket during the suspension
period with a revised itinerary of one enplanement per trip (for a
total of two enplanements), which results in repricing of
[[Page 27749]]
the itinerary. The carrier must refund to the passenger the amount
of the September 11th Security Fee previously collected when the
passenger initially purchased the ticket, and the carrier must not
collect the fee for the reissued ticket.
Example 2. If a passenger purchases a ticket before the
suspension period and the carrier reissues the ticket during the
suspension period because the passenger redeems frequent flier
awards in order to obtain an upgrade, the carrier must not refund
the September 11th Security Fee it collected when the passenger
initially purchased the ticket. Similarly, if the carrier reissues
the ticket during the suspension period because the carrier provided
a free upgrade, the carrier must not refund the September 11th
Security Fee.
Example 3. If a passenger purchases a ticket prior to the
suspension period and the travel is already underway during the
suspension period and there is a repricing of the ticket, the
carrier must not collect the September 11th Security Fee for the
changed or unused portion of the itinerary. Therefore, any fee
collected for the changed or unused portion of the itinerary must be
refunded to the passenger.
Prepaid Air Transportation. In the case of prepaid air
transportation (for example, prepaid ticket advice), if the passenger
fully prepays air transportation before the suspension period and the
carrier issues a ticket against the prepaid amount during the
suspension period, the carrier must collect the September 11th Security
Fee for that ticket, because TSA considers the air transportation to
have been purchased before the suspension period. However, if a
passenger fully prepays air transportation during the suspension period
and the carrier issues a ticket against the prepaid amount during or
after the suspension period, the carrier must not collect the September
11th Security Fee for that ticket.
Tickets for Passengers on Public Charter Flights. As discussed
above, under TSA's regulation at 49 CFR 1510.9, where a passenger
purchases a ticket from a direct or foreign air carrier, or from the
carrier's agent such as a travel agent, the carrier must collect the
September 11th Security Fee from the passenger at the time of ticket
purchase. On January 25, 2002, TSA issued a letter clarifying when the
fee is considered to be collected in the case of passengers who
purchase tickets on public charter flights.\1\
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\1\ You may obtain an electronic copy of the letter by accessing
TSA's electronic docket for TSA 2001-11120. Using the search
function of the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search), type
in the last 5 digits of the docket number shown above. Click on
``search.'' On the next page, which contains the docket summary
information for the docket you selected, click on the link for TSA
2001-11120-11.
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Unlike in the case of scheduled passenger flights, passengers on
public charter flights purchase their tickets from a public charter
operator. Regulations of the Department of Transportation require the
charter operator to place all funds collected from passengers in an
escrow account and to forward payment to the direct or foreign air
carrier operating the flight at a later date.\2\ In its January 25th
letter, TSA made clear that tickets purchased by public charter
passengers are not considered to be sold for purposes of TSA's
regulations governing the September 11th Security Fee, until the
earlier of: (1) The time the direct or foreign air carrier receives
funds from the public charter escrow account; or (2) the date the
direct or foreign air carrier operates the flight. The purpose of this
interpretation by TSA was to more closely align a direct or foreign air
carrier's obligation to pay the fee to TSA with its actual receipt of
the fee from the public charter operator. TSA will maintain the
existing payment structure for the charter operators to remit the
September 11th Security Fees to direct and foreign air carriers while
also maintaining the requirements for direct and foreign air carriers
to remit the fees to TSA during and after the suspension period.
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\2\ See 14 CFR 212.8.
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As a result, however, the definition of when air transportation is
sold on a public charter flight for purposes of 49 CFR part 1510 does
not coincide with the time the passenger actually purchases a ticket
for that flight. As discussed above, the Appropriations Act suspends
the imposition of fees on air transportation that a passenger actually
purchases during the suspension period. Accordingly, TSA is providing
the following guidance to direct and foreign air carriers related to
air transportation on public charter flights. During the suspension of
the September 11th Security Fee, TSA will (1) continue to allow direct
air carriers to remit the already collected fees to TSA according to
the structure identified in the January 25, 2002, letter; however (2)
Charter operators may not collect September 11th Security Fees from
passengers paying in full during the suspension period.
Additional Guidance for Suspension of Fees for Public Charter
Passengers. For passengers on public charter flights, when the
passenger purchases a ticket from the charter operator, which means
paying the charter operator in full for the ticket at any time from 12
a.m., Eastern Daylight Time, on June 1, 2003 through 11:59 p.m.,
Eastern Daylight Time, on September 30, 2003, the public charter
operator must not collect the September 11th Security Fee from the
passenger. In addition, since the fee will not be imposed on
passengers, the direct or foreign air carrier operating the flight must
not collect the September 11th Security Fee from the charter operator
for any passengers who purchased tickets from the public charter
operator during the suspension period. Notwithstanding 49 CFR
1510.9(c), the direct or foreign air carrier will not incur any
obligation to pay the amount of such fee (not collected from
passengers) to TSA.
Continuing Payment of Fees to TSA. Under 49 CFR 1510.13(a), direct
and foreign air carriers must pay all September 11th Security Fees
imposed each calendar month to TSA by the last calendar day of the
month following the imposition of the fee. Therefore, direct and
foreign air carriers must pay to TSA any September 11th Security Fees
imposed on tickets purchased during the month of May, 2003, no later
than June 30, 2003. In addition, any other security fees imposed prior
to the suspension period, but not remitted by air carriers to TSA, are
still due to TSA during and after the suspension period.
In the case of tickets purchased on public charter flights, direct
and foreign air carriers must continue to forward to TSA, in accordance
with 49 CFR 1510, any September 11th Security Fees paid by passengers
who purchased tickets prior to the beginning of the suspension period.
These payments continue to be due to TSA by the last calendar day of
June, July, August, and September of 2003.
For example, if a passenger purchases a ticket from a public
charter operator on May 15, 2003, for a flight that will take place on
June 15, 2003, the public charter operator will collect the September
11th Security Fee from the passenger and place it in an escrow account.
As explained in TSA's letter of January 25, 2002, in order to more
closely align a direct or foreign air carrier's obligation to pay the
fee to TSA with the carrier's actual receipt of the fee from the public
charter operator, the ticket is considered to be sold at the time the
charter operator provides the escrow funds to the direct or foreign air
carrier operating the flight or the date the flight occurs, whichever
comes first. If the public charter operator, in the example, provides
the escrow funds to the carrier on June 14, 2003, the carrier must pay
the fee to TSA by July 31, 2003. If a direct or foreign air carrier
does not collect the appropriate fee from a passenger, the air carrier
is still responsible for paying the fee to TSA.
[[Page 27750]]
A carrier may offset fees refunded to passengers during the
suspension period against future amounts of September 11th Security
Fees due to TSA in June 2003 and following months under 49 CFR part
1510.
Resumption of Imposition of the September 11th Security Fee. TSA
will resume imposition of the September 11th Security Fee beginning at
12 a.m. on October 1, 2003, without any further notice. Therefore,
direct and foreign air carriers must resume collecting and paying to
TSA the September 11th Security Fee on tickets purchased by passengers
beginning on 12 a.m., Eastern Daylight Time, on October 1, 2003, in
accordance with the requirements of 49 CFR part 1510. If an air carrier
does not collect the appropriate fee from a passenger, that should have
been collected before the suspension period, the air carrier is still
responsible for paying the fee to TSA.
In the case of public charter flights, because public charter
operators will not collect September 11th Security Fees from passengers
who purchase tickets during the suspension period, there will be
instances where the escrow payments that direct or foreign air carriers
receive from public charter operators after September 30, 2003, will
not include September 11th Security Fees for some or all of the tickets
sold for a flight. If the public charter operator did not collect the
fee due to the suspension, the direct or foreign air carrier will not
incur any obligation to pay those fees to TSA, notwithstanding 49 CFR
part 1510.
Reporting Requirements Continue During the Suspension Period. In
accordance with 49 CFR 1510.17, each direct and foreign air carrier
must continue to provide TSA with quarterly reports that provide an
accounting of fees imposed, collected, refunded, and remitted to TSA.
If a carrier collects no fees during the suspension period, the carrier
must submit the required report showing zeros in the appropriate fields
in the report. The Bureau of Transportation Statistics collects such
data for TSA. The Bureau website address for reporting the data is
http://www.bts.gov/oai/tsa/. For further information on these reporting
requirements, air carriers may also contact Ms. Nancy Sharpe, Data
Administrator, Bureau of Transportation Statistics, Office of Airline
Information, K-14, 400 7th Street, SW., Room 4125, Washington, DC
20590, phone: 202-366-2261, fax: 202-366-3383.
Travel Involving More than One Carrier. For purposes of 49 CFR part
1510, a direct air carrier or foreign air carrier that provides or
offers to provide air transportation is considered to be the selling
carrier. If a passenger's air transportation includes travel on two or
more carriers, or if the passenger's air transportation is otherwise on
an aircraft not operated by the selling carrier, the selling carrier is
responsible for paying the September 11th Security Fee applicable to
the air transportation.
Suspension of the ASIF
The Appropriations Act prohibits TSA from imposing the ASIF during
the suspension period, June 1, 2003, to September 30, 2003. Therefore,
notwithstanding 49 CFR 1511.5 (a) through (c) and 1511.7(b), air
carriers and foreign air carriers engaged in air transportation will
not incur any obligations to make payments to TSA for the months of the
suspension period that otherwise would be required under 49 CFR
1511.7(b) to be paid in July, August, September, and October of 2003.
Payment due under 49 CFR 1511.7(b) for May of 2003 remains due by June
30, 2003. Any other ASIF incurred prior to the suspension period, but
not remitted to TSA, continues to be due to TSA during and after the
suspension period.
TSA will resume imposition of the ASIF beginning October 1, 2003,
without any further notice. Therefore, direct and foreign air carriers
must resume making payments to TSA under 49 CFR part 1511, beginning
with the payment due under 49 CFR 1511.7(b) no later than November 30,
2003.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the TSA consider the impact of paperwork and other information
collection burdens imposed on the public. We have determined that there
are no new information collection requirements associated with this
rule.
Regulatory Impact Analyses
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866, Regulatory Planning and Review
(58 FR 51735, October 4, 1993), directs each Federal agency to propose
or adopt a regulation only upon a reasoned determination that the
benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires agencies
to analyze the economic impact of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to assess
the effect of regulatory changes on international trade. Fourth, the
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires
agencies to prepare a written assessment of the costs, benefits, and
other effects of proposed or final rules that include a Federal mandate
likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation.)
Executive Order 12866 Assessment
In conducting these analyses, TSA has determined that the economic
impact of this rule does not meet the standards for a ``significant
regulatory action'' under section 3(f) of Executive Order 12866 and
does not require an assessment of potential costs and benefits under
section 6(a)(3), of that Order. However, TSA has determined that
because of the public interest in the subject of security fees, this
rule is considered significant and, therefore, has been reviewed by the
Office of Management and Budget. Although a regulatory analysis or
evaluation does not accompany this rule, TSA recognizes the rule will
impose no or de minimus costs on the aviation industry and the public
other than those weighed by Congress in passing the Appropriations Act.
Air carriers will benefit through not having to collect the security
fees and the public will benefit by not having to pay the security
fees. The September 11th Security Fee that passengers will not have to
pay and air carriers will not have to collect and remit to TSA is
estimated to be $600 million. The Aviation Security Infrastructure Fee
that air carriers will not incur, and therefore will not remit to TSA,
is estimated to be $100 million. This mandatory security fee suspension
totaling $700 million is imposed by the Appropriations Act and is not a
direct impact of this rulemaking. This rule addresses implementation of
the suspension of the fee as it relates to the initial fee imposition
requirements provided in 49 CFR part 1510.
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies
perform a review to determine whether a proposed or final rule will
have a significant economic impact on a substantial number of small
entities. If the determination is that it will, the agency must prepare
a regulatory flexibility analysis as described in the RFA. For purposes
of the RFA, small entities include small businesses, not-for-profit
organizations, and small governmental jurisdictions. Individuals and
States are not included in the definition of a small entity. When no
notice of proposed rulemaking has first been published, no
[[Page 27751]]
such assessment is required for a final rule.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this rulemaking and has determined that it will not have a
significant impact on foreign commerce and, therefore, has no effect on
any trade-sensitive activity.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 is intended, among other
things, to curb the practice of imposing unfunded Federal mandates on
State, local, and tribal governments. Title II of the Act requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule that may result
in a $100 million or more expenditure (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector; such a mandate is deemed to be a
``significant regulatory action.''
This rulemaking does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply and TSA has not
prepared a statement under the Act.
Executive Order 13132, Federalism
The TSA has analyzed this final rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action will not have a substantial direct effect on the States, or the
relationship between the national Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore does not have federalism implications.
Environmental Analysis
The TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
Energy Impact
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects in 49 CFR Parts 1510 and 1511
Accounting, Auditing, Air carriers, Air transportation,
Enforcement, Federal oversight, Foreign air carriers, Reporting and
recordkeeping requirements, Security measures.
The Amendment
0
In consideration of the foregoing, the Transportation Security
Administration amends Chapter XII of Title 49, Code of Federal
Regulations, as follows:
SUBCHAPTER A--ADMINISTRATIVE AND PROCEDURAL RULES
PART 1510--PASSENGER CIVIL AVIATION SECURITY SERVICE FEES
0
1. The authority citation for part 1510 continues to read as follows:
Authority: 49 U.S.C. 44940.
0
2. From June 1, 2003, through September 30, 2003, suspend Sec. Sec.
1510.5 and 1510.9(a) through (c), and add a new Sec. 1510.23 to read
as follows:
Sec. 1510.23 Temporary suspension of the September 11th Security Fee.
(a) Suspension of the September 11th Security Fee. (1)
Notwithstanding 49 CFR 1510.9(a) and (b), a direct air carrier or
foreign air carrier must not collect the September 11th Security Fee
from any passenger for air transportation sold during the suspension
period. For purposes of this section, the suspension period is 12:00
a.m., Eastern Daylight Time, on June 1, 2003, through 11:59 p.m.,
Eastern Daylight Time, on September 30, 2003. When a passenger
purchases a ticket from a direct or foreign air carrier or its agent
and the passenger pays in full, including through redemption of
frequent flier awards, for the ticket during the suspension period, the
carrier must not collect the September 11th Security Fee from the
passenger. In addition, notwithstanding 49 CFR 1510.9(c), the direct or
foreign air carrier will not incur any obligation to pay the amount of
such uncollected fee to TSA.
(2) If a direct or foreign air carrier collects a September 11th
Security Fee from a passenger who purchases a ticket during the
suspension period, the carrier must refund the fee to the passenger.
(3) Direct and foreign air carriers must continue to collect the
September 11th Security Fee on air transportation purchased by
passengers through 11:59 p.m., Eastern Daylight Time, on May 31, 2003,
even if the flight for which the transportation is purchased is to be
operated during the suspension period.
(b) Tickets reissued during the suspension period. (1) If a
passenger purchases a ticket before the suspension period begins and
the carrier reissues a replacement ticket during the suspension period
without any changes to the original itinerary, the carrier continues to
be responsible for collecting the amount of the September 11th Security
Fee that applied upon the initial purchase of the ticket. If, as a
result of the reissuance, however, the ticket is repriced during the
suspension period, the September 11th Security Fee will not apply to
the reissued ticket. Repricing a ticket means a transaction in which
the itinerary of a paid ticket is revised due to voluntary changes made
by the passenger and the ticket is reissued to determine the new price
of the itinerary. Redemption of frequent flyer awards during the
suspension period for cabin upgrades does not constitute repricing of
the ticket and therefore the fee must continue to be charged. Free
upgrades do not constitute repricing and therefore do not result in
refund of the fee.
(i) Example 1. A passenger purchases a round-trip ticket before
the suspension period with two enplanements per one-way trip (for a
total of four enplanements) and, due to changes made by the
passenger, the carrier reissues the ticket during the suspension
period with a revised itinerary of one enplanement per trip (for a
total of two enplanements), which results in repricing of the
itinerary. The carrier must refund to the passenger the amount of
the September 11th Security Fee previously collected when the
passenger initially purchased the ticket, and the carrier must not
collect the fee for the reissued ticket.
(ii) Example 2. If a passenger purchases a ticket before the
suspension period and the carrier reissues the ticket during the
suspension period because the passenger redeems frequent flier
awards in order to obtain an upgrade, the carrier must not refund
the September 11th Security Fee it collected when the passenger
initially purchased the ticket. Similarly, if the carrier reissues
the ticket during the suspension period because the carrier provided
a free upgrade, the carrier must not refund the September 11th
Security Fee.
(iii) Example 3. If a passenger purchases a ticket prior to the
suspension period and the travel is already underway during the
suspension period and there is a repricing of the ticket, the
carrier must not collect the September 11th Security Fee for the
changed or unused portion of the itinerary. Therefore, any fee
collected for the changed or unused portion of the itinerary must be
refunded to the passenger.
[[Page 27752]]
(2) Prepaid air transportation. In the case of prepaid air
transportation (for example, prepaid ticket advice), if the passenger
prepays air transportation before the suspension period and the carrier
issues a ticket against the prepaid amount during the suspension
period, the carrier must collect the September 11th Security Fee for
that ticket. However, if a passenger prepays air transportation during
the suspension period and the carrier issues a ticket against the
prepaid amount during or after the suspension period, the carrier must
not collect the September 11th Security Fee for that ticket.
(c) Tickets for passengers on public charter flights. (1) A direct
or foreign air carrier operating a public charter flight must not
collect the September 11th Security Fee from the charter operator for
any passengers who purchased air transportation (tickets) from the
public charter operator and paid in full during the suspension period.
Notwithstanding 49 CFR 1510.9(c), the direct or foreign air carrier
will not incur any obligation to pay the amount of such fee (not
collected from passengers) to TSA.
(d) Continuing payment of fees to TSA. (1) Direct and foreign air
carriers must pay to TSA any September 11th Security Fees imposed on
tickets purchased during the month of May, 2003, no later than June 30,
2003. In addition, any other security fees imposed prior to the
suspension period, but not remitted by air carriers to TSA, remain due
to TSA during and after the suspension period.
(2) In the case of tickets purchased on public charter flights,
direct and foreign air carriers must continue to forward to TSA, in
accordance with 49 CFR 1510, any September 11th Security Fees paid by
passengers who purchased tickets prior to the beginning of the
suspension period. These payments continue to be due to TSA by the last
calendar day of June, July, August, and September of 2003.
(i) Example. If a passenger purchases a ticket from a public
charter operator on May 15, 2003, for a flight that will take place
on June 15, 2003, the public charter operator will collect the
September 11th Security Fee from the passenger and place it in an
escrow account. If the public charter operator provides the escrow
funds to the carrier on June 14, 2003, the carrier must pay the fee
to TSA by July 31, 2003.
(ii) [Reserved]
(3) A carrier may offset fees refunded to passengers during the
suspension period against future amounts of September 11th Security
Fees due to TSA in June 2003 and following months under 49 CFR part
1510.
(4) If a carrier does not collect the appropriate fee from a
passenger that should have been collected before the suspension period,
the air carrier remains responsible for paying the fee to TSA.
(e) Resumption of imposition of the September 11th Security Fee.
(1) TSA will resume imposition of the September 11th Security Fee
beginning at 12 a.m. on October 1, 2003, without any further notice.
Therefore, direct and foreign air carriers must resume collecting and
paying to TSA the September 11th Security Fee on tickets purchased by
passengers beginning on 12 a.m., Eastern Daylight Time, on October 1,
2003, in accordance with the requirements of 49 CFR part 1510. These
fees imposed in October 2003 are due to TSA no later than November 30,
2003.
(2) In the case of public charter flights, because public charter
operators will not collect September 11th Security Fees from passengers
who purchase tickets during the suspension period, there will be
instances where the escrow payments that direct or foreign air carriers
receive from public charter operators after September 30, 2003, will
not include September 11th Security Fees for some or all of the tickets
sold for a flight. If the public charter operator did not collect the
fee for this reason, the direct or foreign air carrier will not incur
any obligation to pay those fees to TSA, notwithstanding 49 CFR part
1510.
(f) Reporting requirements continue during the suspension period.
In accordance with 49 CFR 1510.17, each direct and foreign air carrier
must provide TSA with quarterly reports that provide an accounting of
fees imposed, collected, refunded, and remitted to TSA. If a carrier
collects no fees during the suspension period, the carrier must submit
the required report showing zeros in the appropriate fields in the
report. The Bureau of Transportation Statistics collects such data for
TSA. The Bureau website address for reporting the data is http://www.bts.gov/oai/tsa/.
For further information on these reporting
requirements, air carriers may also contact Ms. Nancy Sharpe, Data
Administrator, Bureau of Transportation Statistics, Office of Airline
Information, K-14, 400 Seventh Street, SW., Room 4125, Washington, DC
20590, phone: 202-366-2261, fax: 202-366-3383.
(g) Travel involving more than one carrier. For purposes of 49 CFR
part 1510, a direct air carrier or foreign air carrier that provides or
offers to provide air transportation is considered to be the selling
carrier. If a passenger's air transportation includes travel on two or
more carriers, or if the passenger's air transportation is otherwise on
an aircraft not operated by the selling carrier, the selling carrier is
responsible for paying the September 11th Security Fee applicable to
the air transportation.
PART 1511--AVIATION SECURITY INFRASTRUCTURE FEE
0
3. The authority citation for part 1511 continues to read as follows:
Authority: 49 U.S.C. 44901 and 44940.
0
4. From June 1, 2003, through September 30, 2003, suspend Sec. Sec.
1511.5(a) through (c) and 1511.7(b), and add a new Sec. 1511.15 to
read as follows:
Sec. 1511.15 Temporary Suspension of the ASIF.
(a) Notwithstanding 49 CFR 1511.5 (a) through (c) and 1511.7(b), an
air carrier or foreign air carrier engaged in air transportation will
not incur any obligation to make payments to TSA for the months of the
suspension period that otherwise would be required under 49 CFR
1511.7(b) to be paid in July, August, September, and October of 2003.
Payment due under 49 CFR 1511.7(b) for May of 2003 remains due by June
30, 2003. Any other ASIF incurred by an air carrier or foreign air
carrier prior to the suspension period, but not remitted to TSA,
continues to be due to TSA during and after the suspension period.
(b) TSA will resume imposition of the ASIF beginning October 1,
2003, without any further notice. Therefore, each air carrier and
foreign air carriers must resume making payments to TSA under 49 CFR
part 1511, beginning with the payment due under 49 CFR 1511.7(b) no
later than November 30, 2003.
Issued in Arlington, VA, on May 15, 2003.
James M. Loy,
Administrator.
[FR Doc. 03-12775 Filed 5-19-03; 10:52 am]
BILLING CODE 4910-62-P