[Federal Register Volume 67, Number 34 (Wednesday, February 20, 2002)]
[Rules and Regulations]
[Pages 7926-7938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4148]



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Part IV





Department of Transportation





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Transportation Security Administration



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49 CFR Part 1511



Aviation Security Infrastructure Fees and Assumption of Civil Aviation 
Security Functions and Responsibilities; Interim Final Rule and Notice

  Federal Register / Vol. 67, No. 34 / Wednesday, February 20, 2002 / 
Rules and Regulations  

[[Page 7926]]


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DEPARTMENT OF TRANSPORTATION

Transportation Security Administration

49 CFR Part 1511

[Docket No. TSA-2002-11334]
RIN 2110-AA02


Aviation Security Infrastructure Fees

AGENCY: Transportation Security Administration, DOT.

ACTION: Interim final rule.

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SUMMARY: The Transportation Security Administration (TSA) announces a 
fee that will be imposed on air carriers and foreign air carriers 
engaged in air transportation, foreign air transportation, and 
intrastate air transportation effective February 18, 2002. For purposes 
of this rule, the fee is described as the Aviation Security 
Infrastructure Fee. The Aviation Security Infrastructure Fee is imposed 
pursuant to the provisions of the Aviation and Transportation Security 
Act and is in addition to the September 11th Security Fee imposed on 
passengers pursuant to an interim final rule published in the Federal 
Register on December 31, 2001. The Aviation Security Infrastructure Fee 
is necessary to help defray TSA's costs of providing U.S. civil 
aviation security services. In order to assist TSA in determining the 
statutory cap for these fees, each air carrier and foreign air carrier 
who paid for passenger and property screening in calendar year 2000 
must complete Appendix A to this part and submit it to TSA by May 18, 
2002. The Aviation Security Infrastructure Fee imposed on each air 
carrier and foreign air carrier will be based on the information the 
carrier provides in Appendix A. The fee imposed on each air carrier and 
foreign air carrier for the period running from February 18 through 
April 30, 2002, must be remitted to TSA by May 31, 2002. Thereafter, 
payment must be remitted to TSA by the last calendar day of each month.

DATES: This interim final rule is effective on February 18, 2002. 
Although the imposition of the Aviation Security Infrastructure Fee is 
statutorily exempted from the rulemaking notice and comment procedures 
set forth in the Administrative Procedure Act, 5 U.S.C. 553, comments 
received on or before March 18, 2002 will be reviewed and considered.

ADDRESSES: Submit written, signed comments to TSA Docket No. 2002-11334 
, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, 
SW., Washington, DC 20590-0001. All comments received will be available 
for examination at the above address between 9 a.m. and 5 p.m., e.t., 
Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard on which the following statement is made: 
``Comments to Docket No. TSA-2002-11334.'' The post card will be date 
stamped and mailed to the sender. Comments also may be sent 
electronically to the Dockets Management System (DMS) at: http://dms.dot.gov at any time. Those who wish to file comments electronically 
should follow the instructions on the DMS web site.
    Public Meeting: TSA is considering the possibility of holding a 
public meeting on this matter and, if so, will issue a separate 
document in the Federal Register to inform the public as to the exact 
date and location of such a meeting.

FOR FURTHER INFORMATION CONTACT: For guidance involving technical 
matters: Randall Fiertz, Deputy Director, Cost and Performance 
Management, Federal Aviation Administration, c/o Department of 
Transportation (DOT), Office of the Secretary, Office of the Assistant 
Secretary for Budget and Programs, 400 Seventh St., SW., Room 10101, 
Washington, DC 20590; telephone (202) 366-9192. For other matters: Rita 
M. Maristch, Department of Transportation, Office of the General 
Counsel, Office of Environmental, Civil Rights and General Law, 400 
Seventh St., SW., Room 10102, Washington, DC 20590; telephone (202) 
366-9161. Office hours are from 9:00 a.m. to 5:30 p.m., e.t. Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:  

Availability of the Interim Final Rule and Comments Received

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Boards Service at (202) 512-1661. Internet 
users may reach the Federal Register's home page at: http://www.nara.gov/fedreg and the Government Printing Office's database at: 
http://www.access.gpo.gov.
    Internet users can access this document and all comments received 
by TSA through DOT's docket management system web site, http://dms.dot.gov. It is available 24 hours each day, 365 days each year. 
Please follow the instructions online for more information and help.

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 TSA's 
jurisdiction. However, because TSA was just established on November 19, 
2001, pursuant to Aviation and Transportation Security Act, Pub. L. 
107-71, it does not yet have the infrastructure or personnel to provide 
such information and guidance. Until such time that it does, the Office 
of the Secretary of Transportation will handle all SBREFA inquiries. 
Accordingly, any small entity that has a question regarding this 
document may contact the individuals listed under the caption FOR 
FURTHER INFORMATION CONTACT.

Background

The September 11 Terrorist Attacks and the Aviation and Transportation 
Security Act

    The September 11, 2001 terrorist attacks and the potential for 
future attacks led Congress to enact the Aviation and Transportation 
Security Act, Pub. L. 107-71 (ATSA), November 19, 2001, which 
established TSA as an administration within DOT. TSA is headed by the 
Under Secretary of Transportation for Security (Under Secretary).
    Section 118 of ATSA added Sec. 44940 to Title 49, U.S.C. Section 
44940 requires that within 60 days of ATSA's enactment, or as soon as 
possible thereafter, (1) TSA impose security service fees on passengers 
of air carriers and foreign air carriers in air transportation, foreign 
air transportation, and intrastate air transportation (air 
transportation) who are enplaning aircraft on flights originating at 
airports in the United States; and (2) to the extent the passenger fees 
are insufficient to cover TSA's costs of providing civil aviation 
security services, TSA may impose additional fees on air carriers and 
foreign air carriers in air transportation. The fees are to help pay 
the costs of providing U.S. civil aviation security services, which are 
described in Sec. 44940(a)(1) as:
    (1) The salary, benefits, overtime, retirement and other costs of 
screening personnel, their supervisors and managers, and Federal law 
enforcement personnel deployed at airport security screening locations;
    (2) The costs of training such personnel and the acquisition, 
operation, and maintenance of equipment used by these personnel;

[[Page 7927]]

    (3) The costs of performing background investigations of personnel;
    (4) The costs of the Federal air marshals program;
    (5) The costs of performing civil aviation security research and 
development under Title 49, U.S.C.;
    (6) The costs of Federal Security Directors; and
    (7) The costs of deploying Federal law enforcement personnel.
    According to Sec. 44940(a)(1), the Under Secretary must determine 
the amount of the costs of providing these civil aviation security 
services. His determination is conclusive and not subject to judicial 
review.
    Section 44940(c) provides that the security service fee imposed on 
passengers may not exceed $2.50 per enplanement or $5.00 per one-way 
trip. On December 31, 2001, TSA published an interim final rule 
``Imposition and Collection of Passenger Civil Aviation Security 
Service Fees'' (September 11th Security Fees) in the Federal Register. 
66 FR 67698. This IFR imposed a September 11th Security Fee in the 
amount of $2.50 on certain passengers enplaning aircraft in air 
transportation. Passengers may not be charged for more than two 
enplanements per one-way trip or more than four enplanements per round 
trip. Pursuant to 49 CFR 1510, direct air carriers and foreign air 
carriers were required to begin collecting the September 11th Security 
Fee on February 1, 2002.
    The September 11th Security Fee is set at the maximum amount 
permitted by ATSA because the costs of providing civil aviation 
security services, as determined by the Under Secretary, are greater 
than the amount that would be recovered by the collection of fees at 
that level. Based on collections beginning on February 1, 2002, the 
September 11th Security Fees collected at the statutory maximum would 
yield less than $1 billion in fiscal year 2002. The yield would be 
slightly more in future fiscal years, but will still be insufficient to 
cover TSA's costs in providing security services identified in 49 
U.S.C. 44940.
    Section 44940(a)(2)(A) expressly states that if revenues from the 
September 11th Security Fee are expected to fall short of the amount 
required to cover civil aviation security service costs, TSA may impose 
a fee on air carriers and foreign air carriers in air transportation to 
cover that shortfall. Pursuant to the terms of ATSA, the amount of that 
fee collected each fiscal year by TSA may not exceed the aggregate 
amount air carriers and foreign air carriers paid for screening 
passengers and property in calendar year 2000, as determined by the 
Under Secretary. For fiscal years 2002 through 2004, the fee imposed on 
each air carrier and foreign air carrier is limited to the amount that 
carrier paid for screening passengers and property in calendar year 
2000, as determined by the Under Secretary. In addition, the fee 
collected in fiscal year 2002 may not exceed the amount each carrier 
paid for screening passengers and property for the period of time in 
calendar year 2000 proportionate to the period of time in fiscal year 
2002 during which the fees are collected. Beginning in fiscal year 
2005, the Under Secretary may determine the per-carrier limitation on 
the basis of market share or any other appropriate measurement, rather 
than on the carrier's actual screening costs in calendar year 2000.
    ATSA requires that the air carrier fee is to be imposed through 
publication of a notice in the Federal Register. However, the statute 
exempts the imposition of these fees from the procedural rulemaking 
requirements of 5 U.S.C. 553 and the user fee requirements of 31 U.S.C. 
9701.
    Section 44940(e)(4) permits the Under Secretary to require an air 
carrier or foreign air carrier to provide any information necessary to 
verify that the amount of the fee imposed on the carrier is correct and 
that the fees are remitted in accordance with law and regulation. 
According to Sec. 44940(e)(5), the air carrier fee is not considered to 
be part of the amount paid for taxable transportation under 26 U.S.C. 
4261. In addition, Sec. 44940(e)(6) prohibits an air carrier and 
foreign air carrier from retaining any portion of the fee to cover the 
carrier's costs of remitting the fee.

The Interim Final Rule

    Effective February 18, 2001, the Under Secretary is imposing a fee 
on air carriers and foreign air carriers engaged in air transportation 
to pay for the costs of providing U.S. civil aviation security service. 
For purposes of this rule, the fee will be described as the Aviation 
Security Infrastructure Fee. The applicability of this part is 
currently limited to air carriers and foreign air carriers operating 
passenger aircraft in air transportation. In accordance with 49 U.S.C. 
44901(f), TSA is currently considering the screening system necessary 
to ensure the security of cargo that is transported by all-cargo 
aircraft in air transportation.
    Section 1511.3 provides definitions for various terms used in this 
part. If a term is not specifically defined in this section, the 
definitions provided in 49 U.S.C. 40102 apply. TSA anticipates issuing 
additional general definitions, which will provide further guidance.
    According to Sec. 1511.5 of this part, TSA may not collect Aviation 
Security Infrastructure Fees in an amount that would exceed the 
aggregate amount air carriers and foreign air carriers paid for 
screening passengers and property in calendar year 2000, as determined 
by the Under Secretary. For fiscal years 2002 through 2004, this 
limitation is constrained by a ``per-carrier'' limitation. More 
specifically, TSA may not collect Aviation Security Infrastructure Fees 
from an air carrier or foreign air carrier in an amount that exceeds 
the amount that carrier paid for screening passengers and property in 
calendar year 2000, as determined by the Under Secretary. For fiscal 
years 2005 and beyond, the Under Secretary will redetermine the ``per-
carrier'' limitation and such redeterminations may be based on the 
carrier's respective market share or any other appropriate measure in 
lieu of its actual screening costs in calendar year 2000. Because the 
``per-carrier'' limit through fiscal year 2004 must be based on each 
carrier's screening costs in 2000, air carriers and foreign air 
carriers that were not engaged in air transportation as defined in this 
part in calendar year 2000 will not be subject to the imposition of the 
Aviation Security Infrastructure Fee until 2005.
    Accordingly, TSA must determine the aggregate amount carriers paid 
for passenger and property screening in calendar year 2000 and the 
amount each individual carrier paid for screening during that same 
year. Therefore, all air carriers and foreign air carriers engaged in 
air transportation in 2000 must fully complete the form set forth in 
Appendix A to this part, ``Calendar Year 2000 Costs for Passenger and 
Property Screening'' and submit the form to TSA pursuant to the 
instructions provided therein by May 18, 2002. In the case of a merger, 
acquisition, corporate restructuring, reorganization, or name change 
involving an air carrier or foreign air carrier that paid for the 
screening of passengers and property transported by passenger aircraft 
in the United States during calendar year 2000, the successor entity 
must include those costs on Appendix A of this part and submit those 
costs together with its own costs to TSA on one form by May 18, 2002. 
Any other air carrier or foreign air carrier that is no longer 
providing air transportation, but was doing so in calendar year 2000, 
must also complete the form set forth in Appendix A and submit the form 
to TSA by May 18, 2002. Broad applicability of this requirement is 
necessary because the

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aggregate amount paid by air carriers and foreign air carriers for 
screening passengers and property in calendar year 2000 will serve as 
the ``overall limit'' on the collection of Aviation Security 
Infrastructure Fees. This is particularly relevant to fiscal years 2005 
and beyond since the ``per-carrier'' limitation will no longer be tied 
to an individual carrier's screening costs in 2000, and the costs of 
providing civil aviation security services will greatly exceed the 
revenues from fees collected pursuant to this part and part 1510. 
Information submitted in Appendix A will be used to assist the Under 
Secretary in determining the amount of Aviation Security Infrastructure 
Fee to be imposed on each carrier.
    We specifically invite comments with respect to Appendix A. Other 
than comments placed in the public docket, information submitted 
pursuant to 49 U.S.C. 44940(a)(2)(B) or this part, including that 
contained in Appendix A, will be deemed Sensitive Security Information 
and subject to the non-disclosure requirements of 49 U.S.C. 40119(b). 
In addition, confidential business information provided in Appendix A 
will be protected from public disclosure, as appropriate, under 5 
U.S.C. 552, 18 U.S.C. 1905, and 14 CFR 302.12. Requests for 
confidentiality for purposes of confidential business information must 
be filed with the Office of the General Counsel (C-10), Department of 
Transportation, at the address indicated in Appendix A.
    Section 1511.7 of the interim final rule mandates that by May 31, 
2002, each air carrier and foreign air carrier engaged in air 
transportation remit to TSA 3.273 percent of the total amount the 
carrier has indicated in Appendix A of this part, or an amount as 
otherwise determined by the Under Secretary. Payment in this amount 
will represent the Aviation Security Infrastructure Fee due for the 
period running from February 18 through February 28, 2002. Also by May 
31, 2002, these air carriers and foreign air carriers must remit 16.666 
percent of the total amount the carrier has indicated in Appendix A, or 
an amount as otherwise determined by the Under Secretary. Payment in 
this amount will represent the Aviation Security Infrastructure Fee due 
for the period running March 1 through April 30, 2002. By the last 
calendar day of each month following May 2002 through September 2004, 
each air carrier and foreign air carrier must remit to TSA 8.333 
percent of the total amount the carrier has indicated in Appendix A, or 
an amount as otherwise determined by the Under Secretary. By the last 
calendar day of each month following September 2004, each air carrier 
and foreign air carrier must remit to TSA 8.333 percent of the total 
amount as determined by the Under Secretary.
    Aviation Security Infrastructure Fees are payable to the 
``Transportation Security Administration'' in U.S. currency and must be 
drawn on a U.S. bank. A monthly payment totaling $1,000 or more must be 
remitted by electronic funds transfer. Although TSA strongly encourages 
that payment less than $1,000 also be remitted by electronic funds 
transfer, such payment may be remitted by check, money order, wire 
transfer or draft. Carriers will be responsible for paying any bank 
processing charges on fees remitted pursuant to this part when such 
charges are assessed on the U.S. government. Specific instructions 
concerning remittance will be provided directly to air carriers and 
foreign air carriers and will be posted on the DOT web site at 
www.dot.gov in the near future.
    Section 1511.9 of this interim final rule requires an air carrier 
or foreign air carrier to retain any and all documents, records, or 
information related to the amount of the Aviation Security 
Infrastructure Fees imposed on that carrier, including all information 
applicable to the costs submitted in Appendix A, and information that 
is reasonably necessary to complete an audit. No later than July 1, 
2002, each air carrier and foreign air carrier must submit to TSA an 
audit performed by an independent certified public accountant of the 
information the carrier provided pursuant to this part. The accountant 
must express an opinion as to the fairness and reasonableness of the 
air carrier's or foreign air carrier's procedures for accounting for 
and remitting the fees. The accountant's working papers with respect to 
the audit must be included with this submission. Specific instructions 
concerning the submission of the audit and working papers will be 
provided directly to the air carriers and foreign air carriers and will 
be posted on the DOT web site at www.dot.gov in the near future.
    This rule requires air carriers and foreign air carriers to allow 
certain authorized Federal representatives to review and audit any of 
the carrier's books and records and to provide other information 
necessary to verify that submissions pursuant to 49 U.S.C. 
44940(a)(2)(B) and this part, including that contained in Appendix A, 
are true and correct and that the aviation security infrastructure fees 
were remitted consistent with law and regulation.
    The rule's enforcement provision states that in addition to any 
other remedies allowed by law, falsification by any party, directly or 
indirectly, of information provided by an air carrier or foreign air 
carrier pursuant to this part, including information submitted in 
Appendix A, may be prosecuted criminally resulting in a fine and/or 
imprisonment under 18 U.S.C 1001. An air carrier's or foreign air 
carrier's failure to comply with the requirements 49 U.S.C. 44940 or 
the provisions of this part may result in a claim due the United States 
by the carrier, which shall be collectable pursuant to Federal Claims 
Collection Act and implementing DOT regulations at 49 CFR part 89.

Good Cause for Immediate Adoption

    Section 44940(d)(1) of title 49, U.S.C., explicitly exempts the 
imposition of the civil aviation security service fees authorized in 
Sec. 44940 from the procedural rulemaking notice and comment procedures 
set forth in 5 U.S.C. 553. In addition, it would be impractical and 
contrary to the public interest to provide for notice and an 
opportunity for comment before issuing this rule. Immediate action is 
expressly contemplated by ATSA and necessary to begin collecting the 
security service fees provided for by the statute. However, TSA will 
consider all comments received on or before the closing date for 
comment, including comments received before the issuance of this rule. 
We will also consider comments filed late to the extent practicable. We 
may amend this rule in light of the comments we receive.

Paperwork Reduction Act

    TSA has determined that this interim final rule will impose new 
collection of information burdens within the meaning of the Paperwork 
Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. chapter 35) (PRA). TSA 
is required to submit this proposed collection of information to the 
Office of Management and Budget (OMB) for review and approval and, 
accordingly, seeks public comments. Pursuant to 5 CFR 1320.13, 
Emergency processing, TSA has asked OMB for temporary emergency 
approval for this collection. Interested parties are invited to send 
comments regarding any aspect of the information collection 
requirements, including: (1) Whether the collection of information is 
necessary for TSA's performance of its statutory duties, including 
whether the information has practical utility; (2) the accuracy of the 
estimated burden provided to OMB; (3) ways to enhance the quality, 
utility, and

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clarity of the collection of information, and (4) ways to minimize the 
collection burden without reducing the quality of the information 
collected. For further information or to comment you may contact: The 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, 725-17th Street, NW., Washington, DC 20503, Attention Desk 
Officer for the Transportation Security Administration. You may also 
contact Rita Maristch at the address listed under For Further 
Information Contact or Steven Cohen, Office of the General Counsel (C-
10), at (202) 366-4684.
    Summary: The TSA has submitted a request for emergency processing 
of a public information collection to OMB for review and clearance of 
the reporting and recordkeeping requirements associated with this 
interim final rule in accordance with PRA. The Information Collection 
Request (ICR) abstracted below has been forwarded to OMB for review and 
comment. The ICR describes the nature of the information collections 
and their expected burden.
    Type of Request: New.
    Abstract: For purposes of collecting information necessary to 
establish the Aviation Security Infrastructure Fee, which will help pay 
for the costs of providing civil aviation security services as 
described in 49 U.S.C. 44940 that are not otherwise covered by the 
collection of the September 11th Security Fee (66 FR 67698, December 
31, 2001), air carriers and foreign air carriers will be required to 
provide information regarding their costs for screening passengers and 
property in calendar year 2000 and provide for an independent audit of 
this information to establish and administer this fee.
    Form Number: An application for a control number for the form has 
been submitted to OMB.
    Affected Public: The information collection requirement applies to 
air carriers or foreign air carriers providing air transportation, 
foreign air transportation, and intrastate air transportation.
    Number of Respondents: This information request will apply to 
approximately 195 air carriers and foreign air carriers.
    Frequency: This is a one-time collection.
    Estimated Annual Burden: Using the above estimate of 195 carriers 
who will have to respond, with an estimate of 40 hours of preparation 
to collect and provide information regarding security costs for 
screening passengers and property in calendar year 2000, at an assumed 
rate of $50 an hour, the estimated cost of collecting and preparing the 
information necessary for 195 respondents is $390,000. In addition, the 
cost of preparing and submitting 195 independent audits of this 
information, with an estimate of 120 hours of time to conduct each 
audit, at an assumed rate of $150 per hour, is $3,510,000. Adding in a 
postage cost of $218.40 (195 responses at a cost of $1.12 to mail each 
one), we estimate that it will cost $3,900,218.40 for the affected air 
carriers and foreign air carriers to prepare, audit, and submit the 
information necessary to satisfy the information collection 
requirement.

Economic Analyses

    This rulemaking has been reviewed under the provisions of 
Sec. 6(a)(3)(D) of Executive Order 12866, Regulatory Planning and 
Review, as well as under DOT's regulatory policies and procedures 
because it may impose significant costs on air carriers and foreign air 
carriers. An assessment in accordance with the Executive Order will be 
conducted in the future. No additional regulatory analysis or 
evaluation accompanies this rule. TSA has not assessed whether this 
rule will have a significant economic impact on a substantial number of 
small entities as defined in the Regulatory Flexibility Act of 1980. 
When no notice of proposed rulemaking has first been published, the 
Regulatory Flexibility Act does not apply.

Executive Order 13132, Federalism

    The TSA has analyzed this 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. 
Therefore, we have determined that this final rule does not have 
federalism implications.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995, is intended, among other things, to curb 
the practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Act requires each Federal 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.
    The requirements of Title II of the Unfunded Mandates Reform Act of 
1995 do not apply when rulemaking actions are taken without the 
issuance of a notice of proposed rulemaking. Accordingly, the TSA has 
not prepared a statement under the Act.

Environmental Review

    TSA has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (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 this rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as 
amended. (42 U.S.C. 6362). It has been determined that this rule is not 
a major regulatory action under the provisions of the EPCA.

List of Subjects in 49 CFR Part 1511

    Accounting, Auditing, Air carriers, Air transportation, 
Enforcement, Federal oversight, Fees, Foreign air carriers, 
Recordkeeping and reporting requirements, Security measures.

    Issued in Washington, DC, on February 14, 2002.
John W. Magaw,
Under Secretary of Transportation for Security.
    For the reasons set forth in the preamble, the Transportation 
Security Administration adds a new part 1511 in Title 49 in Chapter 
XII, Subchapter A, of the Code of Federal Regulations to read as 
follows:

PART 1511--AVIATION SECURITY INFRASTRUCTURE FEE

Sec.
1511.1   Applicability and purpose.
1511.3   Definitions.
1511.5   Imposition of Aviation Security Infrastructure Fees.
1511.7   Remittance of Aviation Security Infrastructure Fees.
1511.9   Accounting and auditing requirements.
1511.11   Federal oversight.
1511.13   Enforcement.

Appendix A to Part 1511--Aviation Security Infrastructure Fee.

    Authority: 49 U.S.C. 44901 and 44940.


Sec. 1511.1  Applicability and purpose.

    (a) This part prescribes the imposition of a fee on air carriers 
and foreign air carriers in air transportation to pay for the costs of 
providing U.S. civil aviation security services as described in 49 
U.S.C. 44940.

[[Page 7930]]

    (b) For purposes of this part, the fee will be described as the 
``Aviation Security Infrastructure Fee.''


Sec. 1511.3  Definitions.

    The following definitions apply for purposes of this part. For 
other definitions that may be applicable to this part refer to 49 
U.S.C. 40102.
    Air transportation means the carriage by passenger aircraft of 
persons or property for compensation or hire in intrastate air 
transportation, interstate air transportation, or foreign air 
transportation.
    Aircraft means a device that is used or intended to be used for 
flight in the air.
    Fiscal year means the fiscal year for the Federal government, which 
begins each year October 1 and ends on September 30. The fiscal year is 
designated by the calendar year in which it ends, e.g., fiscal year 
2002 is the year beginning October 1, 2001, and ending September 30, 
2002.
    Foreign air transportation means air transportation between a place 
in the United States and any place outside of the United States.
    Interstate air transportation means air transportation within the 
United States.
    Intrastate air transportation means air transportation wholly 
within the same State of the United States.
    Passenger aircraft means an aircraft that is used to transport 
passengers in air transportation.
    Property means mail, cargo, carry-on and checked baggage, and any 
other articles transported by passenger aircraft operated by an air 
carrier or foreign air carrier in air transportation, but excluding 
property transported under the ``Known Shipper Program.''
    Under Secretary means the Under Secretary of Transportation for 
Security or the Under Secretary's designee.


Sec. 1511.5  Imposition of Aviation Security Infrastructure Fees.

    (a) Effective February 18, 2002, an Aviation Security 
Infrastructure Fee will be imposed on air carriers and foreign air 
carriers engaged in air transportation.
    (b) The amount of the Aviation Security Infrastructure Fee for each 
fiscal year will not exceed, in the aggregate, the amounts paid in 
calendar year 2000 by air carriers and foreign air carriers for the 
screening of passengers and property transported by passenger aircraft 
in the United States, as determined by the Under Secretary.
    (c) For fiscal years 2002, 2003 and 2004, the amount of the 
Aviation Security Infrastructure Fee imposed on each air carrier and 
foreign air carrier will not exceed the amount each such carrier paid 
for the screening of passengers and property transported by passenger 
aircraft in the United States during calendar year 2000, as determined 
by the Under Secretary.
    (d) Each air carrier and foreign air carrier that paid for the 
screening of passengers and property in calendar year 2000 must fully 
complete the form set forth in Appendix A to this part titled, 
``Calendar Year 2000 Costs Paid for Passenger and Property Screening,'' 
and submit the completed form to the Transportation Security 
Administration by May 18, 2002.
    (e) In the case of a merger, acquisition, corporate restructuring, 
reorganization, or name change involving an air carrier or foreign air 
carrier that paid for the screening of passengers and property 
transported by passenger aircraft in the United States during calendar 
year 2000, the successor entity must include those screening costs in 
Appendix A of this part and submit those costs together with its own 
costs on one form in accordance with paragraph (d) of this section. Any 
other air carrier or foreign air carrier that paid for the screening of 
passengers and property transported by passenger aircraft in the United 
States during calendar year 2000 but is no longer providing air 
transportation must also complete the form set forth in Appendix A and 
submit the form in accordance with paragraph (d) of this section.
    (f) The Under Secretary has determined that the information 
submitted pursuant to this part and 49 U.S.C. 44940(a)(2)(B) is 
Sensitive Security Information and is subject to the non-disclosure 
requirements of 49 U.S.C. 40119(b).
    (g) The amount of the Aviation Security Infrastructure Fee imposed 
on each air carrier and foreign air carrier will be redetermined for 
fiscal years 2005 and beyond, and such redeterminations may be based on 
the carrier's respective market share or any other appropriate measure 
in lieu of the measure provided in paragraph (c) of this section.


Sec. 1511.7  Remittance of Aviation Security Infrastructure Fees.

    (a) No later than May 31, 2002, each air carrier and foreign air 
carrier engaged in air transportation must remit to TSA.
    (1) 3.273 percent of the total amount the carrier has indicated in 
Appendix A of this part, or an amount as otherwise determined by the 
Under Secretary, which will represent the Aviation Security 
Infrastructure Fee due for the period running from February 18 through 
February 28, 2002; and,
    (2) 16.666 percent of the total amount the carrier has indicated in 
Appendix A of this part, or an amount as otherwise determined by the 
Under Secretary, which will represent the Aviation Security 
Infrastructure Fee due for period running from March 1 through April 
30, 2002.
    (b) Each air carrier and foreign air carrier engaged in air 
transportation must remit to TSA 8.333 percent of the total amount the 
carrier has indicated in Appendix A of this part, or an amount as 
otherwise determined by the Under Secretary, by the last calendar day 
of each month following May 2002 up to and including September 2004.
    (a) Each air carrier and foreign air carrier engaged in air 
transportation must remit to TSA 8.333 percent of the total amount as 
determined by the Under Secretary pursuant to section 1511.5(g) of this 
part by the last calendar day of each month following September 2004.
    (b) Aviation Security Infrastructure Fees must be payable to the 
``Transportation Security Administration'' in U.S. currency and drawn 
on a U.S. bank.
    (1) Aviation Security Infrastructure Fees of $1,000 or more must be 
remitted by electronic funds transfer.
    (2) Aviation Security Infrastructure Fees under $1,000 may be 
remitted by electronic funds transfer, check, money order, wire 
transfer, or draft.
    (a) Air carriers and foreign air carriers are responsible for 
paying any bank processing charges on Aviation Security Infrastructure 
Fees remitted under this part when such charges are assessed on the 
U.S. government.


Sec. 1511.9  Accounting and auditing requirements.

    (a) Each air carrier and foreign air carrier must submit an audit 
performed by an independent certified public accountant of the 
information provided pursuant to this part to the Transportation 
Security Administration by July 1, 2002. The cost of the audit will be 
borne by the carrier. The accountant must express an opinion as to the 
fairness and reasonableness of the air carrier's and foreign air 
carrier's procedures used for accounting and remitting the fees. The 
accountant's working papers with respect to the audit must accompany 
this submission.
    (b) Each air carrier and foreign air carrier must maintain and 
retain any and all documents, records, or information related to the 
amount of the Aviation Security Infrastructure Fees imposed on the 
carrier pursuant to this

[[Page 7931]]

part, including all information applicable to the costs submitted in 
Appendix A, and information that is reasonably necessary to complete an 
audit.


Sec. 1511.11  Federal oversight.

    (a) Upon request, air carriers and foreign air carriers must allow 
any authorized representative of the Secretary of Transportation, the 
Under Secretary of Transportation for Security, the Inspector General 
of the Department of Transportation, or the Comptroller General of the 
United States to audit or review any of the books and records and 
provide any other information necessary to verify that:
    (1) The information submitted pursuant to 49 U.S.C. 44940(a)(2)(B) 
and this part, including that provided in Appendix A, is true and 
correct; or
    (2) The Aviation Security Infrastructure Fees were remitted 
consistent with this part.


Sec. 1511.13  Enforcement.

    (a) In addition to any other remedies allowed by law, willful 
falsification by any party, directly or indirectly, of information 
provided by an air carrier or foreign air carrier pursuant to this 
part, including information submitted in Appendix A as required by 
section 1511.5 of this part, may be prosecuted criminally resulting in 
a fine and/or imprisonment under 18 U.S.C 1001.
    (b) An air carrier's or foreign air carrier's failure to comply 
with the requirements of 49 U.S.C. 44940 or the provisions of this part 
may result in a claim due the United States by the carrier, which claim 
shall be collectable pursuant to 31 U.S.C. Chapter 37 and the 
Department of Transportation's implementing regulations at 49 CFR part 
89.

Appendix A to Part 1511--Aviation Security Infrastructure Fee

Instructions

General guidance

    When filling out this form, the responding air carrier or 
foreign air carrier shall include all costs incurred in calendar 
year 2000 by that air carrier for the screening of passengers and 
property. Costs are those attributed to the screening of passengers 
and property in the United States for both flights within the United 
States and flights from the United States to foreign destinations. 
Reported costs must be consistent with the air carrier's financial 
accounting information reported in accordance with generally 
accepted accounting principles.
    Where actual costs of screening passengers and property cannot 
be directly identified through an air carrier's accounting system, 
the air carrier shall use an appropriate alternate cost assignment 
methodology. Documentation that explains and supports the assignment 
methodology used, the applicable pool and the allocation basis must 
be made available upon request. For costs related to capitalized 
property, please report the associated depreciation expense incurred 
during calendar year 2000. Capitalization policy must also be made 
available upon request.
    To the extent necessary, the reporting air carrier may aggregate 
those specific costs that have been incurred but cannot be stated in 
the detailed cost categories requested by this form. However, all of 
the costs identified by this form must be included in the total 
calculations. In addition, explanations regarding costs that have 
been aggregated need to be provided. Costs reported in Appendix A do 
not need to include costs that may have been incurred for a position 
higher than those of the air carrier's director of security (or 
equivalent). Costs incurred for higher positions, such as those of 
the air carrier's chief executive officer, do not need to be 
included.
    When including cost information on acquired and/or merged air 
carriers, the successor air carrier must specify the names of all of 
such entities whose calendar year 2000 passenger and property 
screening costs are included in that air carrier's submission as 
Appendix A.
    The costs listed below are to be in US dollars, rounded to the 
nearest dollar. Place a zero in the appropriate box to indicate cost 
categories in which the air carrier did not incur costs for 
passenger and property screening in calendar year 2000.

Supporting Notes

    Examples of cost types that appear in the supporting notes below 
are for illustrative purposes only and are not intended to set forth 
all relevant costs that must be reported by air carriers and foreign 
air carriers. In submitting information to TSA, air carriers and 
foreign air carriers must submit all of their relevant costs, 
regardless of whether those costs have been specifically illustrated 
in the notes.

Submission of Data

    This form will be available electronically from the Department 
of Transportation's website at www.dot.gov. Air carriers are asked 
to return the completed form by certified mail to: Chief Financial 
Officer, Transportation Security Administration, Department of 
Transportation, 400 Seventh Street SW, Washington, DC 20590. Please 
also submit the same information in Microsoft Word either on a 
computer disk or by e-mail to [email protected].

Confidentiality of Data

    Consistent with 49 CFR Sec. 1511.5(f), information submitted in 
Appendix A is deemed to be Sensitive Security Information and will 
be so protected from public disclosure under 49 U.S.C. 40119(b). In 
addition, confidential business information and economic information 
provided in Appendix A will be protected from public disclosure, as 
appropriate, under 5 U.S.C. Sec. 552 (the Freedom of Information 
Act), 14 CFR Sec. 302.12, and 18 U.S.C. Sec. 1905. Requests for 
confidentiality must be filed with the Office of the General 
Counsel, Department of Transportation (C-10), 400 Seventh Street, 
SW, Room 10102, Washington, DC 20590

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Supporting Notes

    a. These are costs that the air carrier incurred directly. 
Includes costs incurred for air carrier personnel salaries and 
benefits, equipment owned, leased or rented directly by that air 
carrier and any other costs directly incurred.
    b. These are costs that the air carrier incurred through 
contracts with security firms. Includes personnel, equipment and 
other costs incurred through contracts with third party security 
companies.
    c. These are costs that the air carrier incurred through other 
means. Includes costs incurred through air carrier security 
consortiums.
    1. Salary, benefits, overtime, retirement and other costs of 
checkpoint screening personnel.
    2. Salary, benefits, overtime, retirement and other costs of 
exit lane monitors.
    3. Salary, benefits, overtime, retirement and other costs of 
cargo screeners.
    4. Salary, benefits, overtime, retirement and other costs of 
checked baggage screeners.
    5. Salary, benefits, overtime, retirement and other costs of all 
baggage runners who move property such as baggage to and from 
screening areas.
    6. Salary, benefits, overtime, retirement and other costs of all 
supervisory personnel, including Checkpoint Screening Supervisors.
    7. All associated expensed non-labor costs including computers, 
communications equipment, time management systems, supplies, 
parking, identification badging, furniture, fixtures, and travel.
    8. All costs of performing required background investigations on 
all screening personnel and supervisors. Screening personnel and 
supervisors includes checkpoint screening personnel, exit lane 
monitors, cargo screeners, checked baggage screeners, baggage 
runners, and their supervisors.
    9. All costs incurred for the training and testing of all 
screening personnel and supervisors, including initial, recurrent 
and remedial training. Includes any computer-based training and the 
development of training programs for the screening of persons and 
property as well as any travel, room and board, and all other such 
expenses related to training.
    10. The costs of implementing and maintaining training records 
for all screening personnel and supervisors.
    11. The costs of completing evaluations for all screening 
personnel and supervisors.
    12. All costs for drug and alcohol testing as well as any 
associated counseling and/or treatment for all screening personnel 
and supervisors.
    13. All costs of renting, purchasing, maintaining, and/or 
cleaning of uniforms and any related equipment such as flashlights 
and batons for all screening personnel and supervisors.
    14. All costs incurred by air carriers for the use of canines 
and their handlers used for the screening of persons and property.
    15. All costs associated with obtaining security clearances for 
personnel relating to the screening of persons and property.
    16. All costs associated with the purchase, installation, and 
testing of all screening equipment. In instances where the equipment 
is capitalized, provide the depreciation expense in lieu of costs 
associated with purchase, installation, and final acceptance 
testing. This includes such equipment as Metal Detection Devices, 
Hand Wands, X-ray screening machines, Explosives Trace Detection 
Devices, Explosives Detection Systems, or any other such similar 
technologies. Includes any costs incurred or depreciation costs 
recognized in calendar year 2000 for the modification and/or 
construction of any facility needed to accommodate screening, 
including architecture and engineering. Also includes the costs of 
any refurbishment and/or modernization of the equipment.
    17. Costs of operating, maintaining, and calibrating installed 
screening equipment. This includes such equipment as Metal Detection 
Devices, Hand Wands, X-ray screening machines, Explosives Trace 
Detection Devices, Explosives Detection Systems, or any other such 
similar technologies. Includes such costs as test objects and X-ray 
radiation surveys, electricity costs and maintenance contract costs 
incurred for the operations of such equipment.
    18. Costs of maintaining integrity of sterile areas. Includes 
costs of opening sterile areas, emergency evacuations of sterile 
areas, and re-screenings not included elsewhere.
    19. The cost of purchase or rent, installation, testing, and 
maintenance of checkpoint signs, barriers, lane markers, and exit 
lane doors.
    20. Any additional costs for special screening such as for 
disabled passengers, VIP passengers, classified and/or high value 
items.
    21. All security company contract costs for the screening of 
persons and property that cannot be detailed into any other cost 
category.
    22. All direct costs for the real estate utilized for the 
screening of persons and property. Includes space at airports for 
the performance of these functions, as well as such space used for 
break rooms, private screening rooms, storages space, training 
rooms, and office space. Also includes appropriate space for the 
oversight of the screening functions outside of airports such as in 
headquarters or regional offices.
    23. All costs for utilities used for screening. Includes 
electricity, heating/ventilation/cooling, and telecommunications 
costs not elsewhere specified.
    24. All costs incurred for the Ground Security Coordinator's 
oversight of the screening functions. Includes personnel salaries, 
benefits, retirement, training, and non-labor costs.
    25. All air carrier head office, regional, or airport specific 
costs associated with the administration and oversight of screening 
not elsewhere specified. Includes personnel salaries, benefits, 
retirement, training, and non-labor costs.
    26. All costs associated with the administration and oversight 
of screening contracts. Includes personnel, benefits, retirement, 
training, and non-labor costs.
    27. All costs not elsewhere specified for background audit 
checks for all screeners and supervisors.
    28. All legal support costs incurred during calendar year 2000 
relating to aviation security screening. Includes legal assistance 
for the implementation and execution of security screening 
contracts.
    29. All costs for accounting and financial services incurred for 
the support of the screening functions.
    30. Includes all labor and non-labor costs for such items as 
human resource administration, clerical assistance, information 
technology, and other support functions related to screening.
    31. All insurance costs relating to screening. Includes worker's 
compensation and general liability insurance.
    32. All costs incurred by the air carriers for law enforcement 
personnel costs that were reimbursed by the air carriers for 
services performed in connection with the screening of persons and 
property.
    33. All costs associated with the recruitment of screening 
personnel and supervisors. Includes signing bonuses, travel, and 
other recruitment expenses.
    34. Any costs incurred for fees charged by other organizations 
for the management of contracts for the screening of persons and 
property.
    35. Any costs incurred not elsewhere specified during calendar 
year 2000 for the screening of passengers and property. These costs 
should be itemized on a separate sheet. Includes any fines or 
monetary penalties incurred for screening as well as any profit/
bonuses paid to contractors for screening services not included 
elsewhere on the form.

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