[Federal Register Volume 67, Number 118 (Wednesday, June 19, 2002)]
[Rules and Regulations]
[Pages 41635-41639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15490]


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DEPARTMENT OF TRANSPORTATION

Transportation Security Administration

49 CFR Parts 1540 and 1544

[Docket No. TSA-2002-12394; Amendment Nos. 1540-2, 1544-2]
RIN 2110-AA05


Private Charter Security Rules

AGENCY: Transportation Security Administration (TSA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This rule amends the rules applying to private charter 
passenger aircraft to increase the level of security required in 
private charter operations. Aircraft operators using aircraft with a 
maximum certificated takeoff weight of 95,000 pounds or more, except a 
government charter, will now be required to ensure that individuals and 
their accessible property are screened before boarding. Given the 
current security risks, the potential for damage these larger aircraft 
can cause, and the need to protect areas that are designated as 
sterile, TSA believes it is now appropriate to require these operators 
to ensure that individuals and their accessible property are screened. 
Individuals are required to submit to screening prior to boarding a 
private charter aircraft under this rule.

DATES: This rule is effective August 19, 2002. Submit comments by July 
19, 2002.

ADDRESSES: You may submit comments to this final rule to the DOT public 
docket through the Internet at http://dms.dot.gov/, docket number TSA-
2002-12394. If you do not have access to the Internet, you may submit 
your comments by United States mail, to the Docket Management System, 
U.S. Department of Transportation, Room PL401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify your comments with Docket 
Number TSA-2002-12394, entitled ``Amendment to Aircraft Operator 
Security Rules,'' and provide three copies. You may also obtain a copy 
of the rule through the Internet, or request a copy through the mail at 
the addresses above.
    You may also review the public docket in person in the Docket 
Office

[[Page 41636]]

between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays. The Docket Office is on the plaza level of the Department of 
Transportation.

FOR FURTHER INFORMATION CONTACT: Lon Siro, Aviation Security 
Specialist, Transportation Security Administration, ACP-100, Department 
of Transportation, Washington, DC 20591, [email protected], 202-267-
3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This amendment is being adopted without prior notice and prior 
public comment. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; Feb. 26, 1979), 
however, provides that to the maximum extent possible, operating 
administrations for the DOT should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, 
interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments. Comments must include the 
regulatory docket or amendment number and must be submitted in 
duplicate to the address above. All comments received, as well as a 
report summarizing each substantive public contact with TSA personnel 
on this rulemaking, will be filed in the public docket. The docket is 
available for public inspection before and after the comment closing 
date.
    See ADDRESSES above for information on how to submit comments.

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last digits of the docket number 
shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the docket summary information 
for the docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through the 
Government Printing Office's web page at http://www.access.gpo.gov/su_docs/aces/aces140html.
    In addition, copies are available by writing or calling the 
Transportation Security Administration's Air Carrier Division, 800 
Independence Avenue, SW., Washington, DC 20591; telephone 202-267-3413.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires TSA to comply with small entity requests for information 
advice about compliance with statutes and regulations within TSA's 
jurisdiction. Any small entity that has a question regarding this 
document may contact the person listed in FOR FURTHER INFORMATION 
CONTACT for information. You can get further information regarding 
SBREFA on the Small Business Administration's web page at http://www.sba.gov/advo/laws/law_lib.html.

Abbreviations and Terms Used In This Document

    ATSA--Aviation and Transportation Security Act.
    SIDA--Security identification display areas.
    TSA--Transportation Security Administration.

Background

    The September 11, 2001, terrorist attacks involving four U.S. 
commercial aircraft that resulted in the tragic loss of life at the 
World Trade Center, the Pentagon, and southwest Pennsylvania, 
demonstrate the need for increased air transportation security 
measures. The terrorists responsible for the attacks retain the 
capability and willingness to conduct airline bombings, hijackings, and 
suicide attacks against American targets. The attempted bombing of a 
U.S. carrier on a flight from Paris on December 22, 2001, confirms the 
ongoing threat to Americans and American assets.
    The events of September 11 led Congress to enact the Aviation and 
Transportation Security Act (ATSA), Public Law 107-71, November 19, 
2001. ATSA required TSA to assume the aviation security 
responsibilities that the Federal Aviation Administration (FAA) 
maintained prior to September 11. On February 22, 2002, TSA published a 
final rule transferring the bulk of FAA's aviation security regulations 
to TSA and adding new standards required by ATSA. 67 FR 8340. 
Regulations concerning aircraft operator security, formally codified at 
14 CFR part 108, are now codified at 49 CFR part 1544. Also on February 
22, 2002, TSA published a rule that, in part, amended the requirement 
for private charter operators. It requires private charters that 
enplane from or deplane into a sterile area to conduct fingerprint-
based criminal history record checks on their flightcrew members. 67 FR 
8205. (The term `flightcrew member' means a pilot, flight engineer, or 
flight navigator assigned to duty in an aircraft during flight time. 
See, 49 CFR 1540.5)
    Subpart B of part 1544 sets forth the requirements operators must 
meet concerning the form, content and implementation of a security 
program. Operator security programs address screening individuals and 
property, qualifications and training for screeners, aircraft security, 
and a variety of other significant security-related measures. Section 
1544.101 establishes requirements for the adoption and implementation 
of a security plan, and provides for different plan components 
depending on the type of aviation operation, volume of passengers, 
departure and arrival location, and type of aircraft.
    Public charter is defined as any charter that is not a private 
charter. There are two types of private charters. (1) Private charters 
include any flight in which the charterer engages the total passenger 
capacity of the aircraft for carrying passengers, the passengers are 
invited by the charterer, the cost of the flight is borne entirely by 
the charterer, and the flight is not advertised to the public in any 
way, to solicit passengers. (2) Private charters include any flight for 
which the total passenger capacity of the aircraft is used for the 
purpose of civilian or military air movement, conducted under contract 
with the U.S. government or a foreign government.
    Since 1978, operators of public charters have been subject to the 
same security requirements as operators of aircraft in scheduled 
service. Private charters have operated under different requirements, 
however. With respect to private charters, the passengers choose to 
travel together. They may be related to one another in some way, such 
as being employed by the same company or on the same sports team, and 
so the risk that one passenger would endanger the others appeared to be 
low. However, in the current threat environment we must reevaluate 
whether such relationships among the passengers can be relied on to 
provide the level of security needed. As was plainly illustrated in the 
September 11 incidents, terrorists not only have the ability to blend 
into their environment and interact with others easily, they 
persistently seek out vulnerabilities in the system, and will travel in 
groups in order to accomplish their goals more efficiently. Moreover, 
in the wake of the September 11 terrorist acts, air travel was 
prohibited initially and resumed incrementally over time. As a result, 
flights to some locations became more difficult to find on a regular or 
frequent basis. More travelers began using the

[[Page 41637]]

charter industry to reach their destinations.
    Therefore, TSA has determined that it is necessary to take 
additional measures to ensure that the passengers on the larger private 
charter aircraft do not have weapons, explosives, or incendiaries that 
would enable them to take over the aircraft and use it to do harm. The 
aircraft subject to this rule--those with a maximum certificated 
takeoff weight of 95,000 or more--are a size, and have a quantity of 
fuel, that could enable them to do great damage to targets on the 
ground. TSA believes the private charter operators should ensure that 
individuals and their accessible property are screened to reduce the 
risk that any individual could have a weapon, explosive, or incendiary 
device that would enable them to commandeer the aircraft and use it to 
destroy a target on the ground.
    Many of the aircraft subject to this rule are used in scheduled 
passenger service one day and as a private charter the next. While in 
scheduled passenger service, the operator and crew conduct business in 
accordance with a full security program that requires screening 
individuals and their accessible property. TSA believes it is necessary 
to require these operators to ensure that all individuals on board and 
their accessible property are screened, regardless of whether they are 
in private charter, public charter, or scheduled service. Therefore, 
the amendment adds language to Sec. 1544.101(f) to require operators of 
aircraft with a maximum certificated takeoff weight of 95,000 pounds or 
more to ensure that the individuals on board and their accessible 
property are screened prior to boarding.
    This amendment does not apply to government charters because they 
can and do carry out procedures on a regular basis to address the 
security concerns at issue. The U.S. Department of Defense (DoD) and 
federal agencies use private charter operations to transport persons 
and property in furtherance of their government missions. The 
government agencies are responsible for ensuring the security of their 
personnel and the public on a daily basis, and have developed security 
measures unique to their needs. TSA sees no reason to apply the 
screening regime developed for commercial and civilian charter 
operations to the government. However, under the current rule, 
government charters must screen passengers when the charter deplanes or 
enplanes in sterile areas. This will minimize the risk that any weapon 
or other prohibited item the government personnel may be carrying could 
inadvertently or purposefully be used to taint the sterile area.
    Paragraph (f) establishes the required security program components 
for private charter operations. Pursuant to the existing language in 
Sec. 1544.101(f), private charter operations that enplane or deplane 
into a sterile area must establish a program that includes acceptance 
and screening of individuals and accessible property (Secs. 1544.201, 
1544.207), use of metal detection devices (Sec. 1544.209), use of X-ray 
systems (Sec. 1544.211), security coordinators (Sec. 1544.215), law 
enforcement personnel (Sec. 1544.217), accessible weapons 
(Sec. 1544.219), criminal history records checks (Secs. 1544.229, 
1544.230), training for security coordinators and crewmembers 
(Sec. 1544.233), training for individuals with security-related duties 
(Sec. 1544.235), bomb or air piracy threats (Sec. 1544.303), security 
directives (Sec. 1544.305), and all of subpart E concerning screener 
qualifications when the aircraft operator performs screening. This rule 
amends Sec. 1544.101(f) by now requiring private charter operators 
(other than government charters) using aircraft with a maximum 
certificated takeoff weight of 95,000 or more, regardless of whether 
they enplane or deplane in a sterile area, to comply with all of these 
sections.
    This rule also adds to paragraph (f) the requirement that private 
charter operators that are subject to part 1544 must comply with 
Sec. 1544.225, regarding the security of aircraft and facilities. For 
screening of individuals and accessible property to be effective, it is 
necessary for operators to ensure that the aircraft is free of weapons, 
explosives, and incendiaries before the individuals board. Private 
charter operators must have security measures in place to ensure the 
integrity of the aircraft.
    This rule also requires individuals on private charter flights to 
submit to screening. For most screening of passengers under part 1544, 
the passenger is screened before entering a sterile area. The gate at 
which the passenger boards the aircraft is within the sterile area. 
Part 1540, which governs general rules for individuals and other 
persons, also establishes rules for screening. Subpart B contains rules 
that apply to many persons, including airport operators, airport 
tenants, aircraft operators, foreign air carriers, indirect carriers, 
employees of these entities, passengers, individuals at airports, and 
other individuals.
    In order to make clear which individuals in an airport must comply 
with screening procedures, Sec. 1540.107 requires all individuals who 
enter sterile areas to submit to screening. For private charter 
screening under this amendment, however, there may be no sterile area. 
The passengers may be screened immediately before they board the 
aircraft. Accordingly, we are amending Sec. 1540.107 to make clear that 
individuals on charter must submit to screening before boarding an 
aircraft. This amendment will also apply to other screening conducted 
just before individuals board, such as gate screening within sterile 
areas.
    Similar changes are made to Sec. 1540.111(a)(1), which provides 
that an individual may not have a weapon, explosive, or incendiary, on 
or about the individual's person or accessible property when screening 
has begun.

Good Cause for Immediate Adoption

    This action is necessary to prevent a possible imminent hazard to 
aircraft, persons, and property within the United States. The events of 
September 11 illustrate the fact that terrorists have the will and 
ability to use large aircraft to destroy landmarks and kill thousands 
of people. The threat of more violence is apparent. Because the use of 
private charters has increased since September 11, the opportunity to 
commit a terrorist act with a large aircraft has increased and more 
people and ground targets may be at risk. The time needed to complete 
notice and comment procedures prior to issuing an enforceable standard 
lengthens the time this situation remains in place and expands the 
circle of risk. TSA has asked for comment with publication of this 
rule, and will consider all comments received shortly thereafter. If 
changes to the rule are necessary to address aviation security more 
effectively, or in a less burdensome but equally effective manner, TSA 
will not hesitate to make such changes. The Under Secretary of 
Transportation for Security believes that the circumstances described 
herein warrant immediate action, and finds that notice and public 
comment under 5 U.S.C. 553(b) are impracticable and contrary to the 
public interest.

Paperwork Reduction Act

    This rule contains information collection activities subject to the 
Paperwork Reduction Act (44 U.S.C. 3507(d)). In accordance with the 
Paperwork Reduction Act, the paperwork burden associated with the rule 
will be submitted to the Office of Management and Budget (OMB) for 
review. As protection provided by the Paperwork Reduction Act, an 
agency may not conduct or sponsor, and a person is not required to 
respond to, a

[[Page 41638]]

collection of information unless it displays a currently valid OMB 
control number. The OMB control number for this information collection 
will be published in the Federal Register after it has been approved by 
the Office of Management and Budget.
    Need: This rule requires operators using aircraft in private 
charter operations with a maximum certificated takeoff weight of 95,000 
pounds or more to ensure that individuals and their accessible property 
are screened prior to boarding.
    Description of Respondents: All new and existing operators using 
aircraft in private charter operations with a maximum certificated 
takeoff weight of 95,000 pounds or more.
    Burden: TSA does not currently have concise data on which aircraft 
operators have aircraft in private charter operations with a 
certificated takeoff weight of 95,000 pounds or more. TSA estimates 
that there are approximately 25 operators currently operating under 14 
CFR part 121 (Domestic, Flag, and Supplemental Operations) that 
currently have no program in place and so will have a new paperwork 
burden under this rule. In addition, TSA estimates that there are 
approximately 45 operators operating under 14 CFR part 121 with some 
portion of a security program with existing paperwork procedures in 
place now. Also, there are airlines using aircraft with a certificated 
takeoff weight of 95,000 pounds or more in charter service and in 
traditional commercial passenger service. These operators must 
currently do screening for commercial service, but will have an 
additional paperwork burden by now completing those screening 
activities for private charters. It is very difficult for TSA to 
determine what this new paperwork burden will be for these operators. 
Accordingly, TSA will calculate the paperwork burden using estimates 
assuming that 70 aircraft operators will be subject to this rule. Thus, 
these assumptions will overestimate the overall burden. In addition, 
TSA assumes no change in the number of aircraft operators over the next 
10 years. Without this simplifying assumption, it would be impossible 
to estimate the total effects of these changes over the ten-year 
period.
    Each air carrier subject to this rule will need to establish a 
program that provides for: screening individuals and accessible 
property; training all employees with security-related duties; training 
all security coordinators and crewmembers; acknowledging receipt of, 
and distributing Security Directives and Information Circulars; and 
preparing, maintaining, and accommodating modifications to a security 
program. The total ten-year paperwork burden is approximately 6,820 
hours at a cost of $165,900. The annual burden totals approximately 560 
hours at a cost of $11,200.
    TSA anticipates that the regulated entities will have to purchase 
no additional equipment.

Economic Analyses

    This rulemaking has been reviewed by the Office of Management and 
Budget. It is significant within the meaning of the Executive Order and 
DOT's policies and procedures. No 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, as amended. When 
a rulemaking action does not include publication of a notice of 
proposed rulemaking, as is the case in this proceeding, economic 
assessments are not required for the final rule. TSA recognizes that 
this rule may impose costs on some affected operators. These costs will 
stem from developing and implementing screening procedures and other 
security measures. However, given the current security threat, TSA 
believes it is necessary to require these enhanced security measures. 
TSA will assess the costs and benefits of the rule as soon as possible 
and include the analysis in the docket of this matter.

Executive Order 13132, Federalism

    TSA has examined this rule under the principles and criteria of 
Executive Order 13132, Federalism. TSA has determined that this action 
will not have a substantial direct effect on the States, or the 
relationship between the national government and the States, or the 
distribution of power and responsibilities among the various levels of 
government. Therefore, this final rule does not have federalism 
implications.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety and security, 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. The TSA has assessed the potential effect of this 
amendment and has determined that it will impose the same costs on 
domestic and international entities and thus has a neutral trade 
impact.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as 
Public Law 104-4 on March 22, 1995 is intended 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 that assesses the effect of any Federal 
mandate found in a rulemaking action that may result in an expenditure 
of $100 million or more (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 identified as a ``significant 
regulatory action.''
    The Act does not apply to a regulatory action in which no notice of 
proposed rulemaking is published, as is the case in this proceeding. 
Accordingly, TSA has not prepared a statement under the Act.

Environmental Analysis

    TSA has reviewed this action for purposes of the National 
Environmental Review 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 this rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that this rule is not a major regulatory action under the provisions of 
the EPCA.

List of Subjects

49 CFR Part 1540

    Air carriers, Aircraft, Airports, Law enforcement officers, 
Reporting and recordkeeping requirements, Security measures.

49 CFR Part 1544

    Air carriers, Aircraft, Aviation safety, Freight forwarders, 
Reporting and recordkeeping requirements, Security measures.

The Amendments

    For the reasons stated in the preamble, the Transportation Security 
Administration amends 49 CFR chapter XII as follows:

[[Page 41639]]

PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES

    1. The authority citation for part 1540 continues to read as 
follows:

    Authority: 49 U.S.C 114, 5102, 40119, 44901-44907, 44913-44914, 
44916-44918, 44935-44936, 44942, 46105.


    2. Section 1540.107 is revised to read as follows:


Sec. 1540.107  Submission to screening and inspection.

    No individual may enter a sterile area or board an aircraft without 
submitting to the screening and inspection of his or her person and 
accessible property in accordance with the procedures being applied to 
control access to that area or aircraft under this subchapter.


    3. In Sec. 1540.111, paragraph (a) introductory text is republished 
and paragraph (a)(1) is revised to read as follows:


Sec. 1540.111  Carriage of weapons, explosives, and incendiaries by 
individuals.

    (a) On an individual's person or accessible property--prohibitions. 
Except as provided in paragraph (b) of this section, an individual may 
not have a weapon, explosive, or incendiary, on or about the 
individual's person or accessible property--
    (1) When performance has begun of the inspection of the 
individual's person or accessible property before entering a sterile 
area, or before boarding an aircraft for which screening is conducted 
under Sec. 1544.201 or Sec. 1546.201 of this chapter;
* * * * *

PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL 
OPERATORS

    4. The authority citation for part 1544 continues to read as 
follows:

    Authority: 49 U.S.C 114, 5103, 40119, 44901-44905, 44907, 44913-
44914, 44916-44918, 44932, 44935-44936, 44942, 46105.


    5. Section 1544.101(f) is revised to read as follows:


Sec. 1544.101  Adoption and implementation.

* * * * *
    (f) Private charter program. (1) In addition to paragraph (d) of 
this section, if applicable, each aircraft operator must carry out 
Secs. 1544.201, 1544.207, 1544.209, 1544.211, 1544.215, 1544.217, 
1544.219, 1544.225, 1544.229, 1544.230, 1544.233, 1544.235, 1544.303, 
and 1544.305, and subpart E of this part and must adopt and carry out a 
security program that meets the applicable requirements of 
Sec. 1544.103 for each private charter passenger operation in which--
    (i) The passengers are enplaned from or deplaned into a sterile 
area; or
    (ii) The aircraft has a maximum certificated takeoff weight of 
95,000 pounds or more, and is not a government charter under paragraph 
(2) of the definition of private charter in Sec. 1540.5 of this 
chapter.
    (2) The Under Secretary may authorize alternate procedures under 
paragraph (f)(1) of this section as appropriate.
* * * * *

    Issued in Washington, DC, on June 12, 2002.
John W. Magaw,
Under Secretary.
[FR Doc. 02-15490 Filed 6-18-02; 8:45 am]
BILLING CODE 4910-62-P