[Federal Register Volume 67, Number 251 (Tuesday, December 31, 2002)]
[Rules and Regulations]
[Pages 79881-79887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-33032]


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DEPARTMENT OF TRANSPORTATION

Transportation Security Administration

49 CFR Part 1544

[Docket No. TSA-2002-12394; Amendment No. 1544-3]
RIN 2110-AA05


Aviation Security: Private Charter Security Rules

AGENCY: Transportation Security Administration (TSA), DOT.

ACTION: Final rule.

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SUMMARY: In response to comments received, TSA is amending the aviation 
security requirements concerning private charter passenger operations. 
TSA issued the existing standard in June 2002, as an emergency final 
rule and requested comments on it. The rule requires private charter 
operators using aircraft with a maximum certificated takeoff weight of 
95,000 pounds or more, to ensure that passengers and their carry-on 
baggage are screened prior to boarding. In response to the comments and 
after further analysis, TSA has determined that the existing threshold 
does not adequately capture the appropriate group of aircraft. TSA is 
now adopting an international security standard, in which private 
charter operations in aircraft with a maximum certificated takeoff 
weight greater than 45,500 kg (100,309.3 pounds), or with a passenger 
seating configuration of 61 or more will be subject to the screening 
requirement. As a result of this amendment, additional aircraft are now 
covered by the rule that were not previously subject to it. TSA is 
establishing a new compliance date for operators of these aircraft, in 
order to provide them sufficient time to develop procedures required by 
this rule and the security program. Also, in response to comments 
received, TSA is permitting the use of non-TSA screeners in certain 
circumstances.

DATES: Effective Date: The effective date for this rule is February 1, 
2003.
    Compliance Dates: For all private charter operators that were 
covered under the rule published June 19, 2002 (67 FR 41635) and 
continue to be covered under the rule as amended, TSA will issue the 
final security program no later than January 3, 2003. These operators 
must be in compliance with the program by February 1, 2003.
    The compliance schedule for any private charter operators not 
covered by the rule published June 19, 2002 (those in aircraft with a 
maximum certificated takeoff weight less than 95,000 pounds and with a 
passenger seating configuration of 61 or more), but covered under this 
amendment, is as follows: these operators must request a copy of the 
security program and provide comments to TSA by January 20, 2003; TSA 
will issue the final security program no later than January 3, 2003; 
these entities must be in compliance with the final security program by 
March 1, 2003.

FOR FURTHER INFORMATION CONTACT: Emily Chodkowski, Aviation Security 
Specialist, Transportation Security Administration, Room 3522, 
Washington, DC 20591, 202-385-1838, [email protected].

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    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 Laws and Regulations Web page at http://www.tsa.dot.gov/law_policy/law_policy_index.shtm.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this rulemaking.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires TSA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within TSA's 
jurisdiction. Any small entity that has a question about 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
CFR--Code of Federal Regulations
FAA--Federal Aviation Administration
FBO--Fixed Base Operator
ICAO--International Civil Aviation Organization
MTOW--Maximum Certificated Takeoff Weight

[[Page 79882]]

SIDA--Security Identification Display Areas
TCDS--Type Certificate Data Sheet
TSA--Transportation Security Administration
U.S.C.--United States Code

Background

    The terrorist attacks of September 11, 2001, led Congress to enact 
the Aviation and Transportation Security Act (ATSA), Pub. L. 107-71, 
November 19, 2001. ATSA created the Transportation Security 
Administration (TSA) and transferred responsibility for aviation 
security from the Federal Aviation Administration (FAA) to TSA. On 
February 22, 2002, TSA published a final rule transferring the bulk of 
FAA's aviation security regulations to TSA and adding new security 
standards required by ATSA. 67 FR 8340. Regulations concerning aircraft 
operator security, including private charter operations, previously 
codified at 14 CFR part 108, are now codified at 49 CFR part 1544. 
Section 1544.101 requires aircraft operators to adopt and implement a 
security program, the components of which vary depending on the type of 
aviation operation, volume of passengers, departure and arrival 
location, and type of aircraft. Depending on these operational 
characteristics, the security program may include procedures for 
screening individuals and property, training screeners, maintaining 
perimeter security, protecting aircraft from unauthorized entry, 
completing background investigations on employees, and other security 
measures.
    There are two types of private charters, which are defined in 
section 1540.5. First, 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. 
Second, 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. A public charter is defined as any 
charter that is not a private charter.
    Section 1544.101(f) sets forth the required security program 
components for private charter operations that enplane or deplane into 
a sterile area. Pursuant to Sec.  1544.101(f), these operations must 
establish a program that includes acceptance and screening of 
individuals and accessible property (1544.201, 1544.207), use of metal 
detection devices (1544.209), use of X-ray systems (1544.211), security 
coordinators (1544.215), law enforcement personnel (1544.217), 
accessible weapons (1544.219), criminal history records checks 
(1544.229, 1544.230), training for security coordinators and 
crewmembers (1544.233), training for individuals with security-related 
duties (1544.235), bomb or air piracy threats (1544.303), security 
directives (1544.305), and all of subpart E concerning screener 
qualifications when the aircraft operator performs screening.
    Since 1978, operators of public charters have been subject to the 
same security requirements as operators of aircraft in scheduled 
service. Private charters, however, have operated under different 
requirements. In 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. 
Therefore, unless the private charter deplaned into or enplaned from a 
sterile area, the full panoply of security procedures did not apply. In 
the current threat environment, TSA believes it is necessary to 
reevaluate these relationships to ensure that an adequate level of 
security exists for private operations that do not make use of airport 
sterile areas. As was plainly illustrated in the September 11 attacks, 
terrorists may blend into their environment, interact with others 
easily, persistently seek out vulnerabilities in the system, and travel 
in groups in order to accomplish their goals more efficiently.
    Therefore, TSA established additional security measures for private 
charters that do not use airport sterile areas to prevent the 
introduction of weapons, explosives, or incendiaries onto the aircraft 
that could enable an individual to commandeer the aircraft and use it 
to do harm. On June 19, 2002, TSA published a final rule that amended 
part 1544 by requiring all private charter operators using aircraft 
with a maximum certificated takeoff weight of 95,000 pounds or more 
(95,000 MTOW) to increase security measures. 67 FR 41635, June 19, 
2002. TSA selected this class of aircraft because their size could 
cause great damage to targets on the ground. In addition, many of these 
aircraft are used in scheduled passenger service one day and in private 
charter service the next. While in scheduled passenger service, the 
operator and crew must operate in accordance with a full security 
program that requires securing the aircraft and screening individuals 
and their accessible property. TSA reasoned that these operators should 
ensure that all individuals and accessible property are screened, 
regardless of whether they are in private charter or scheduled service. 
Therefore, TSA added language in Sec.  1544.101(f) to require non-
government, private charter operators of aircraft with a 95,000 MTOW, 
regardless of where they deplane or enplane passengers, to ensure that 
the individuals on board and their accessible property are screened 
prior to boarding. Also, TSA added language to paragraph (f) requiring 
these private charter operators to comply with Sec.  1544.225 regarding 
the security of aircraft and facilities. In order for individual 
property screening to be effective, operators must ensure that the 
aircraft is free of weapons, explosives, and incendiaries before 
individuals board. Private charter operators must have security 
measures in place to ensure the integrity of the aircraft.
    For most passenger screening under part 1544, the passenger is 
screened before entering a sterile area. The gate at which the 
passenger boards the aircraft is typically within the sterile area. 
Subpart B of part 1540 contains rules that apply to many persons, 
including airport operators, airport tenants, aircraft operators, 
foreign air carriers, indirect carriers, employees of these entities, 
passengers, and individuals at airports. In order to make clear who 
must comply with screening procedures, Sec.  1540.107 requires all 
individuals who enter sterile areas to submit to screening. For private 
charter screening, however, there may be no sterile area. Accordingly, 
TSA amended Sec.  1540.107 to make clear that individuals on private 
charters must submit to screening before boarding an aircraft. Similar 
changes were made to Sec.  1540.111(a)(1), which provides that an 
individual may not have a weapon, explosive, or incendiary when 
screening begins.
    TSA received more than 100 comments in response to the request for 
comments issued with the rule in June. After consideration of these 
comments and additional analysis, TSA believes that the current 
threshold for determining which aircraft should be subject to the 
screening requirement does not adequately capture the larger aircraft 
TSA intended to cover. The weight threshold of 95,000 MTOW, although a 
reasonable measure of aircraft size, is awkward in practical 
application. In some cases, this figure divides an aircraft type into 
two groups:

[[Page 79883]]

those certified to takeoff at weights over 95,000 pounds and those 
certified at weights under 95,000 pounds. Therefore, larger aircraft 
that TSA intends to cover in this rule fall out of the standard. For 
instance, early models of the DC-9 aircraft are certified to takeoff 
with weights less than 95,000 pounds, even though these aircraft can 
seat 70 passengers and appear to be nearly identical to subsequent 
models with a MTOW in excess of 95,000 pounds that are subject to the 
screening requirement.
    In addition, as a result of comments, TSA reviewed an international 
security standard that was established to determine when hardened 
cockpit doors should be required. This standard applies to aircraft 
that weigh in excess of 45,500 kg. (100,309.3 pounds), or with 61 or 
more seats. This standard, by using both weight and seating 
configuration, captures the anomalies discussed above and in greater 
detail below that the 95,000 MTOW threshold does not cover. Many 
commenters suggested a seating configuration threshold and many 
suggested the international standard. TSA agrees that the international 
standard is a more complete approach to private charter security and so 
is amending the rule to incorporate it.
    Finally, TSA received many comments from charter operators and 
small airports concerning the difficulties of scheduling charter 
service to accommodate the presence of TSA screeners. Most charters 
depend on flexibility in location and hours of operation to remain 
economically viable. If TSA requires all private charter operators to 
use TSA screeners and TSA screening checkpoints, charter operators will 
lose their flexibility and economic vitality. As a result of these 
comments, TSA is affirmatively authorizing the use of non-TSA screeners 
under certain circumstances.

Summary of Comments

    When TSA issued the rule in June 2002 establishing a weight 
threshold to determine which private charter passengers must be 
screened, the agency requested comments from the industry and 
interested parties. Approximately 100 entities responded and commented 
primarily on five areas: confusion about the definition of ``private 
charter,'' the unique operational difficulties charters may face, small 
airport concerns, issues specific to Alaskan operators, and the weight 
threshold. A summary of the comments follows, arranged by subject 
matter.
    Some organizations requested clarification of the definition of 
``private charter.'' The complete definition can be found in 49 CFR 
1540.5. To summarize, a non-government, private charter is any aircraft 
operator flight in which the charterer engages the total passenger 
capacity of the aircraft, the cost of the flight is borne by the 
charterer and not directly or indirectly by any passenger, and the 
flight is not advertised in any way to solicit passengers. Also, 
government private charters include operations in which the total 
passenger capacity is used for government civilian or military air 
travel. The rule exempts government charters from the screening 
requirement, unless they enplane from or deplane into a sterile area. 
Government charters, such as a Department of Defense flight, have 
security procedures in place that adequately address security risks. 
Also, the passengers on these government charters may be required to 
carry weapons, which would be prohibited in other passenger operations.
    Several commenters expressed concern about the adverse impact the 
rule will have on private charter operations. Comment: Private charters 
often use small airports in remote locations where there is no terminal 
or baggage check area. If the final security program requires typical 
screening checkpoints and magnetometers, charters would be forced to 
alter their network of operations entirely and use large airports where 
standard security procedures are in place. Also, charter operators 
would have to change their hours of operation to depart only when 
established screening checkpoints were in operation. These changes will 
undermine the flexibility and economic benefits charters offer to 
passengers, organizations, and small airports. Some organizations that 
make use of private charters on a regular basis, such as professional 
and collegiate sports teams, must travel to and from remote locations 
frequently and at odd hours. Altering these charter operations 
dramatically would impose significant barriers to completing normal 
business activities. Many charter operators use Fixed Base Operators 
(FBO) to handle administrative and operational issues at small 
airports. However, there are only two FBOs in the country that have 
screening facilities available for charter operations. If the final 
security program required these operators to conduct all screening at 
established screening checkpoints, additional facilities must be 
constructed and installed, which would impose significant financial 
burdens and time delays. Response: As is discussed in greater detail 
below, TSA will authorize procedures to prevent these difficulties.
    The commenters also asserted that private charters possess unique 
characteristics that diminish the risk of dangerous or unlawful acts. 
Comment: Typically, charter clientele are ``known'' to the charter 
operators or to each other. They work together or play on the same 
sports team, and so the likelihood that someone unknown or with suspect 
motives would commandeer the aircraft or injure passengers is remote. 
Also, the charter clientele often are ``high profile'' individuals who 
generate crowds and confusion in airport terminals. Consequently, 
additional security may be necessary and existing security officers are 
diverted from their standard duties. Further, sports teams travel with 
medical personnel and equipment that is needed in-flight. Some of this 
equipment may not be permitted in the aircraft cabin under standard 
screening procedures. The professional sports teams typically have 
security procedures in place to ensure that passengers' baggage is 
placed in a secure area and that only designated passengers are 
permitted to board the aircraft. All of these unique qualities warrant 
special procedures for private charter operations. Response: As is 
discussed in greater detail below, TSA will authorize use on non-TSA 
screeners to prevent these difficulties. We note that TSA does permit 
some medical equipment that otherwise would be prohibited on scheduled 
flights, and will work with the sports teams to consider what medical 
equipment should be permitted in the cabin.
    Many commenters expressed concern about the fate of small airports 
that are unable to meet the level of security required in the charter 
rule. Comment: If these airports cannot facilitate new screening 
requirements, flights will be diverted to airports serving scheduled 
operations. This change would have an adverse economic impact on many 
communities. Also, large airports that become the beneficiaries of this 
change might not be staffed to handle security procedures adequately. 
One airport that serves a high number of private charters commented 
that the rule would not be effective as a stand-alone security 
mechanism, because screened charter passengers and their accessible 
property could be co-mingled with unscreened passengers and baggage on 
common ramp areas. Another regional airport urged TSA to develop a 
``trusted traveler'' program to permit vetted passengers to bypass 
security prior to boarding. Response: The private charter security rule 
is not a ``stand-alone''

[[Page 79884]]

mechanism; there are additional security regulations that prevent 
unscreened passengers from entering airport sterile areas and areas 
that are designated as security identification display areas in 
airports. In addition, the final security program TSA issues for 
private charter operators will include procedures that prevent screened 
passengers from mingling with non-screened passengers. The ``trusted 
traveler'' program will be addressed in another rulemaking proceeding.
    Commenters also urged TSA to adopt security procedures for private 
charters operating in Alaska that can accommodate the special 
characteristics of the Alaskan environment. Comment: Alaska has a 
limited highway system and vast terrain, so there is a high volume of 
intrastate air travel. For instance, private zinc and lead mines 
located north of the Arctic Circle in a remote section of Alaska are 
served exclusively by private charter service. The only road on the 
property runs to their port site; none exist to any other community. 
Alaska Airlines operates two private charters per week to the mines to 
rotate personnel and supplies. There are many similar situations in 
Alaska, where the need for accessible flexible air travel is great. 
Response: The procedures TSA will authorize in the final security 
program, such as permitting the use of non-TSA screeners, will provide 
adequate flexibility to private charter operators in Alaska to ensure 
that operations can continue as needed.
    Comment: Many commenters asked for clarification on the kind of 
security procedures required by the rule and the security program.
    Response: The process used to develop air carrier and airport 
security programs involves two distinct phases. The first is issuance 
of a rule that establishes minimum security standards that the operator 
or airport must meet. For the charter rule, TSA requires affected 
private charter operators to adhere to a TSA-approved security program 
that meets the standards of 49 CFR 1544.101(f) and 1544.103. Also, TSA 
requires affected private charter operators to ensure that passengers 
and their accessible property are screened prior to boarding. The 
second phase of the process involves developing a security program that 
sets forth the details and procedures used to meet the minimum rule 
standards. The security program is considered sensitive security 
information (SSI) and cannot be issued to the public, placed in the 
docket, or discussed with specificity in this document. TSA developed a 
standard security program and forwarded it to affected entities for 
comment. Each entity had an opportunity to comment on the standard 
program, which many have done in this proceeding, and requested changes 
to accommodate unique operations or characteristics. TSA may approve 
the changes or require the operator to adhere to the standard program. 
The details of the program that the commenters are seeking most likely 
exist in the final security program, which TSA cannot discuss in this 
document. However, they can be addressed privately between the affected 
operator and TSA staff.
    The weight threshold is the factor that determines which private 
charter operators must screen passengers and accessible property. This 
issue generated many comments.
    Comment: Some operators and manufacturers asked TSA to specify why 
95,000 MTOW was selected. Some recommended that TSA redraw the line at 
100,000 MTOW, which is part of the standard the International Civil 
Aviation Organization (ICAO) adopted in February 2002 to distinguish 
which cockpit doors must be reinforced to enhance security. Actually, 
the accurate ICAO standard requires reinforcing cockpit doors in 
aircraft with an MTOW of greater than 45,500 kg, (100,309.3 pounds), or 
with a seating capacity greater than 60. Some commenters asserted that 
TSA should include aircraft fuel capacity as part of the threshold, due 
to the damage fuel can cause on impact. Also, use of ``more than 19 
seats,'' or ``more than 75 seats'' in addition to, or in place of the 
maximum takeoff weight, would be preferable to the standard established 
in June 2002.
    One manufacturer and its customers claimed that the standard 
creates an inequity in the treatment of the Canadian-manufactured, 
Bombardier Aerospace Global Express. There are several MTOWs listed for 
the Global Express, some less than, some more than 95,000 MTOW. The 
U.S.-manufactured Gulfstream V is the Global Express' primary 
competitor, and has a 90,700 MTOW. Therefore, private charter 
operations in the Gulfstream are not subject to the screening 
requirement, but certain models of the Global Express are, pursuant to 
the current rule language. Bombardier asserted that the rule is 
discriminatory and constitutes an unfair trade practice.
    Response: As is discussed in greater detail below, TSA believes 
that the current international standard, which combines weight and 
passenger seating capacity, is the standard to adopt for private 
charter operations.

Rule Amendment and Response to Comments

I. Weight Threshold

    TSA again analyzed charter operations, the existing aircraft fleet, 
and the existing standard, and determined that the threshold for 
passenger and carry-on baggage screening in private charter operations 
should be changed. TSA is amending the rule to adopt the ICAO standard, 
or private charter operations in aircraft with a MTOW greater than 
45,500 kg., or with a passenger seating configuration of 61 or more. In 
pounds, the threshold is a MTOW greater than 100,309.3.
    When TSA established 95,000 MTOW as the threshold, TSA sought to 
cover the larger aircraft that are used often in charter service. The 
degree to which certain aircraft are selected for charter service often 
depends on the number of aircraft in service, the number of runways and 
airports the aircraft is capable of using, and the likelihood that the 
operator is amenable to leasing the aircraft out to a group. For 
instance, the DC-9 series aircraft are used in approximately 300 
flights per day. (Please note that there is no data available that 
distinguishes the number of charter flights from scheduled passenger 
service). These aircraft can operate from short runways because of the 
wing lift and significant engine thrust, which enables them to make use 
of nearly all airports. These aircraft have a maximum passenger seating 
configuration of more than 70 passengers, generally are not privately 
owned, and have the potential to be used in charter and scheduled 
service. When used in scheduled or public charter service, they must be 
operated under a full security program (49 CFR 1544.101(a)), which 
includes screening passengers and accessible property. TSA believes 
that the DC-9 series and similar aircraft constitute the class of 
aircraft that should be covered in this rule.
    TSA also selected 95,000 MTOW for the rule published in June 2002, 
because it had been used previously by FAA and TSA as a benchmark to 
distinguish larger aircraft. For instance, pursuant to the authority 
set forth in Special Federal Aviation Regulation (SFAR) 91, TSA issued 
a notice to certain all-cargo carriers with 95,000 MTOW that required 
them to adopt additional security measures.
    Maximum certificated takeoff weight is the maximum weight at which 
the FAA has determined an aircraft can take off, and is derived from 
engineering data, aircraft weight, acceleration, lift, and performance 
testing. The aircraft

[[Page 79885]]

manufacturer must submit design and performance figures to the FAA in 
order to be certified to fly at certain weights, speeds, seating 
configurations, fuel capacity, and so on. The MTOW is established 
during this process, based on a review of the engineering data and 
actual performance testing, and is listed on the FAA's Type Certificate 
Data Sheet (TCDS). Over time, manufacturers may conduct additional 
performance testing to prove to FAA that the aircraft can be operated 
safely at a higher MTOW or speed, or with more cargo. In order to 
increase these operational limits, the aircraft must undergo additional 
performance testing and may be structurally modified. These subsequent 
MTOW figures are then listed on the TCDS as the authorized takeoff 
weight.
    A review of the aircraft that fall within this standard indicates 
they are used prevalently, would generate significant impact damage, 
carry a high number of passengers, and have significant fuel capacity. 
This threshold captures aircraft in which it is unlikely that all 
passengers and crew know each other or share an affinity relationship, 
which is the group TSA intended to cover. It is less likely that a 
corporate jet with fewer than 20 seats would be chartered by a group of 
passengers that are strangers or do not know the crew.

II. Seating Capacity

    TSA and FAA have also used seating configuration to categorize 
aircraft by size and use. Section 1544.101 establishes requirements for 
security programs based on seating configuration, and requires greater 
security measures for aircraft with a seating configuration of 61 or 
more in scheduled or public charter service. Seating capacity, like 
MTOW, is an indicator of aircraft size and the extent of damage the 
aircraft would cause if used in a terrorist act. It is also reasonable 
to assume that passengers in an aircraft with a large seating capacity 
are less likely to know one another and the crew than individuals 
traveling in a corporate jet. TSA has determined that it is appropriate 
to use both seating configuration and MTOW to determine which aircraft 
are subject to the rule, and therefore is adopting the ICAO standard 
for the threshold in this amendment to the rule and the seating 
configuration now used for scheduled and public charter service. By 
using both the seating capacity and MTOW, TSA will cover the target 
group of aircraft, but will exclude private corporate jets with a small 
seating capacity.
    TSA is adding the seating configuration of 61 seats or more for 
several reasons. First, TSA believes it is important to cover the DC-9-
10 series aircraft, which have a seating configuration of 79 through 
109. Some of these aircraft have a MTOW under 95,000 and would not be 
subject to screening under the previous threshold. These aircraft were 
designed specifically to operate from short runways due to their high 
wing lift and powerful engine thrust. Consequently, they can operate at 
many small airports, which might be serviced by charter operators. 
There are approximately 47 DC-9-10 series aircraft currently registered 
with FAA, making their potential for use in charter operations worthy 
of consideration for enhanced security standards. By adding seating 
configuration to the security threshold, TSA will capture the larger, 
but lighter, charter aircraft. Many aircraft, although under 95,000 
MTOW, have a seating configuration of more than 100 seats, and these 
passengers should undergo security screening.
    As discussed previously, ICAO recently established a requirement to 
install reinforced cockpit doors in aircraft with an MTOW of 45,500 kg 
(100,309.3 pounds) or a passenger seating configuration of 61 or more. 
Many commenters urged TSA to adopt a standard based on seating 
configuration, and some commenters suggested that TSA adopt the weight 
limit used in the ICAO standard. For years, scheduled and public 
charter aircraft with a passenger seating configuration of more than 61 
seats have been required to operate with a full security program, which 
includes passenger screening. (49 CFR 1544.101(a)).
    Due to the addition of seating configuration as a threshold, there 
are aircraft covered by the rule now that were not covered when the 
rule was issued in June 2002. The following aircraft are included in 
the group of new aircraft covered: British Aerospace ATP, 146-100A and 
146-200A; Fokker-F.28 Mark 0100, F.28 Mark 4000, F.28 Mark 0070; 
Bombardier DHC-8-401; McDonnell Douglas DC-9-10 series; and AVRO RJ85A. 
Any private charter operators that use these aircraft and do not 
operate aircraft covered by the rule issued June 2002, would not have 
anticipated the need to develop screening procedures or comment on the 
TSA standard security program. Therefore, TSA has established a 
compliance schedule for these operators to ensure that they have 
adequate time to prepare.

III. Screening

    As discussed previously, many private charter operators use small 
airports that do not have established screening checkpoints or 
corresponding screening equipment. Also, many private charters operate 
at odd hours when airport terminals with screening checkpoints are not 
open. Many of the commenters raised this issue as a significant 
impediment to their ongoing viability, and urged TSA to permit 
screening by non-TSA personnel. However, a few commenters questioned 
TSA's ability to allow screening by non-TSA employees. TSA has 
determined that in certain cases, screening may be completed by 
screeners that are not TSA employees. TSA will authorize the use of 
non-TSA screeners in the security program, under certain circumstances. 
For instance, if checkpoint screening in an airport terminal is not 
available due to the time of day or location, non-TSA screeners might 
be used. Also, if using an established airport screening checkpoint 
creates logistical difficulties or disrupts ongoing screening 
activities in the airport, non-TSA screeners might be used by the 
private charter operators.
    ATSA includes a requirement that Federal employees carry out 
passenger and property screening. However, an examination of other 
provisions of title 49 of the U.S. Code and the history of the 
screening requirement demonstrates that Congress did not intend to 
require screening on all flights. Congress has recognized that 
passenger and property screening has not been required with respect to 
all aircraft--in particular, the Under Secretary is specifically 
authorized to exempt unscheduled operations from 49 U.S.C. 44901. 
Congress recognized that other specific types of operations were not 
subject to screening requirements at the time it enacted ATSA, and 
imposed no such requirements.
    TSA will authorize private charter operators to use non-TSA 
screeners who complete the TSA-approved screener training program. TSA 
has developed the training in modular format, and the non-TSA screeners 
who screen these private charter operations must receive training on 
the type of equipment and procedures they will be responsible for 
using. For instance, if the screening location is not equipped with a 
walk-through metal detector (WTMD), the screeners at this location are 
not required to complete the training module that addresses WTMD. The 
private charter security program will provide details concerning 
training for screeners in private charter operations.

[[Page 79886]]

    TSA will allow some flexibility in determining which individuals 
may act as screeners for private charter operations that do not use 
established screening checkpoints. TSA will consider such factors as 
the degree of independence the screener has in relation to the 
passengers, and the important duties the flightcrew must complete in 
preparation for departure. A system in which individuals screen their 
supervisors, close associates, or friends would not be advisable. This 
would require the screener to find and report prohibited or illegal 
items, which could lead to disciplinary action against a colleague or 
supervisor, or the loss of the charter contract. An arm's-length 
relationship between screener and passenger creates more effective and 
thorough screening. Also, the aircraft flightcrew typically have many 
safety and security responsibilities to complete prior to departure, 
which could make completion of the screening impossible or ineffective. 
Many commenters suggested that FBO employees, where present, are good 
candidates for screeners. Also, commenters suggested that other airport 
personnel, including local law enforcement personnel, may be 
appropriate candidates to conduct screening. TSA is aware of the fact 
that all affected entities must be able to complete the TSA-authorized 
training for screeners shortly after the final security program is 
released. The new compliance dates established in this rule amendment 
should accommodate the time needed to adequately train screening 
personnel.

Paperwork Reduction Act

    This rule contains information collection activities subject to the 
Paperwork Reduction Act (PRA) (44 U.S.C. 3507(d)). In accordance with 
the PRA, the paperwork burden associated with the rule will be 
submitted to the Office of Management and Budget (OMB) for review. The 
PRA provides that an agency may not conduct or sponsor, and a person is 
not required to respond to, a 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 OMB.
    Need: This rule requires operators using aircraft in private 
charter operations with a maximum certificated takeoff weight greater 
than 100,309.3 pounds, or a seating configuration of 61 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 greater than 100,309.3 pounds, or a seating capacity of 
61 or more.
    Burden: TSA does not currently have precise data on which aircraft 
operators have aircraft in private charter operations with a 
certificated takeoff weight greater than 100,309.3 pounds, or a seating 
configuration of 61 or more. TSA estimates that there are approximately 
25 operators currently operating under 14 CFR part 121 (Domestic, Flag, 
and Supplemental Operations) that 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 
an original certificated takeoff weight of 100,309.3 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 effect 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 was originally reviewed by the OMB. 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 is in the process of determining 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. TSA recognizes that this rule may impose costs on 
some affected operators, which 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 at this time. It is difficult to assess the 
costs of the rule until the final security program is completed, which 
TSA plans to finish shortly. TSA will assess the costs and benefits of 
the rule once the security program is in final form and place an 
economic analysis of it in the docket on or before January 24, 2003. 
TSA will make changes to the rule, if necessary, as a result of the 
economic analysis.

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. 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 Pub. 
L. 104-4 on March 22, 1995, is intended to curb the practice of 
imposing unfunded

[[Page 79887]]

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 (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) 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 in 49 CFR Part 1544

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

The Amendment

    For the reasons stated in the preamble, the Transportation Security 
Administration amends 49 CFR chapter XII part 1544 as follows:

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

    1. 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.


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


Sec.  1544.101  Adoption and implementation.

* * * * *
    (f) Private charter program. In addition to paragraph (d) of this 
section, if applicable, each aircraft operator must carry out 
Sec. Sec.  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--
    (1) 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 greater 
than 45,500 kg (100,309.3 pounds), or a passenger-seating configuration 
of 61 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 December 26, 2002.
Stephen J. McHale,
Deputy Administrator.
[FR Doc. 02-33032 Filed 12-30-02; 8:45 am]
BILLING CODE 4910-62-P