[Federal Register Volume 76, Number 160 (Thursday, August 18, 2011)]
[Rules and Regulations]
[Pages 51848-51868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-20840]
[[Page 51847]]
Vol. 76
Thursday,
No. 160
August 18, 2011
Part III
Department of Homeland Security
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Transportation Security Administration
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49 CFR Parts 1515, 1520, 1522 et al.
Air Cargo Screening; Final Rule
Federal Register / Vol. 76, No. 160 / Thursday, August 18, 2011 /
Rules and Regulations
[[Page 51848]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1515, 1520, 1522, 1540, 1544, 1546, 1548, and 1549
[Docket No. TSA-2009-0018; Amendment Nos. 1515-2, 1520-9, 1522-1, 1540-
11, 1544-10, 1546-6, 1548-6, 1549-1]
RIN 1652-AA64
Air Cargo Screening
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule; request for comments.
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SUMMARY: This rule amends two provisions of the Air Cargo Screening
Interim Final Rule (IFR) issued on September 16, 2009, and responds to
public comments on the IFR. The IFR codified a statutory requirement of
the Implementing Recommendations of the 9/11 Commission Act of 2007
that the Transportation Security Administration (TSA) establish a
system to screen 100 percent of cargo transported on passenger aircraft
not later than August 3, 2010. It established the Certified Cargo
Screening Program, in which TSA certifies shippers, indirect air
carriers, and other entities as Certified Cargo Screening Facilities
(CCSFs) to screen cargo prior to transport on passenger aircraft. Under
the IFR, each CCSF applicant had to successfully undergo an assessment
of their facility by a TSA-approved validation firm or by TSA. In
response to public comment, this Final Rule removes all validation firm
and validator provisions, so that TSA will continue to conduct
assessments of the applicant's facility to determine if certification
is appropriate.
The IFR also required that if an aircraft operator or foreign air
carrier screens cargo off an airport, it must do so as a CCSF. The
Final Rule deletes this requirement, as aircraft operators are already
screening cargo on airport under a TSA-approved security program, and
do not need a separate certification to screen cargo off airport.
This rule also proposes a fee range for the processing of Security
Threat Assessments, and seeks comment on the proposed fee range and the
methodology used to develop the fee. TSA will announce the final fee in
a future Federal Register notice.
DATES: Effective September 19, 2011.
Comment Date: Comments must be received by September 19, 2011.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
government-wide, electronic docket management system, using any one of
the following methods:
Electronically: You may submit comments through the Federal
eRulemaking portal at http://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address, hand-deliver, or fax your written
comments to the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The
Department of Transportation (DOT), which maintains and processes TSA's
official regulatory dockets, will scan the submission and post it to
FDMS.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: For questions related to air cargo
screening program: Tamika McCree, Manager, Air Cargo Stakeholder
Relations, Air Cargo Security, TSA-28, Transportation Security
Administration, 601 South 12th Street, Arlington, VA 20598-6028;
telephone (571) 227-2632; facsimile (571) 227-1947; e-mail
[email protected].
For legal questions: Alice Crowe, Senior Counsel, Office of Chief
Counsel, TSA-22, Transportation Security Administration, 601 South 12th
Street, Arlington, VA 20598-6028; telephone (571) 227 -2652; facsimile
(571) 227-1379; e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
In this final rule, TSA seeks prior public comment on our proposed
fee to cover the cost of the STAs. To the maximum extent possible, DHS
provides an opportunity for public comment on regulations issued
without prior notice. Accordingly, TSA invites interested persons to
participate in this rulemaking by submitting written comments, data, or
views on the proposed fee for the STA. See ADDRESSES above for
information on where to submit comments.
With each comment, please identify the docket number at the
beginning of your comments. TSA encourages commenters to provide their
names and addresses. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. You may submit comments and
material electronically, in person, by mail, or fax as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail or delivery, submit them in an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you would like TSA to acknowledge receipt of comments submitted
by mail, include with your comments a self-addressed, stamped postcard
on which the docket number appears. We will stamp the date on the
postcard and mail it to you.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information (SSI).\1\ TSA will consider all comments received
on or before the closing date for comments and will consider comments
filed late to the extent practicable. The docket is available for
public inspection before and after the comment closing date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
Upon receipt of such comments, TSA will not place the comments in
the public docket and will handle them in accordance with applicable
safeguards and restrictions on access. TSA will hold documents
containing SSI, confidential business information, or trade secrets in
a separate file to which the public does not have access, and place a
note in the public docket that TSA has received such materials from the
commenter. If TSA determines, however, that portions of these comments
may be made publicly available, TSA may include a redacted version of
the comment in the public docket. If TSA receives a request to examine
or copy information that is not
[[Page 51849]]
in the public docket, TSA will treat it as any other request under the
Freedom of Information Act (FOIA) (5 U.S.C. 552) and the FOIA
regulation of the Department of Homeland Security found in 6 CFR part
5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual who submitted the comment (or signed the comment, if
submitted on behalf of an association, business, labor union, etc.).
You may review the applicable Privacy Act Statement published in the
Federal Register on April 11, 2000 (65 FR 19477) and modified on
January 17, 2008 (73 FR 3316).
You may review TSA's electronic public docket on the Internet at
http://www.regulations.gov. In addition, DOT's Docket Management
Facility provides a physical facility, staff, equipment, and assistance
to the public. To obtain assistance or to review comments in TSA's
public docket, you may visit this facility between 9 a.m. to 5 p.m.,
Monday through Friday, excluding legal holidays, or call (202) 366-
9826. This docket operations facility is located in the West Building
Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington,
DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) web page at http://www.regulations.gov;
(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top
of the page.
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
and 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. Persons can obtain further information regarding SBREFA on the
Small Business Administration's web page at http://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Document
ACDMS Air Cargo Data Management System
CBP U.S. Customs and Border Protection
CCSF Certified Cargo Screening Facility
CCSP Certified Cargo Screening Program
CFR Code of Federal Regulations
CHRC Criminal History Records Check
DHS Department of Homeland Security
DOE Department of Energy
FSD Federal Security Director
IAC Indirect Air Carrier
IED Improvised Explosive Device
SIDA Security Identification Display Area
SSI Sensitive Security Information
STA Security Threat Assessment
S&T DHS Directorate of Science & Technology
STP Screening Technology Pilot
TSA Transportation Security Administration
Outline of Final Rule
I. Background
II. Summary of the Final Rule
III. Disposition of Comments
IV. Section-by-Section Analysis of Changes
V. Proposed Fee for Security Threat Assessments
VI. Paperwork Reduction Act
VII. Economic Impact Analysis
VIII. Executive Order 13132, Federalism
IX. Environmental Analysis
X. Energy Impact Analysis
I. Background
Sec. 1602 of the Implementing the Recommendations of the 9/11
Commission Act of 2007 (Pub. L. 110-53, 121 Stat. 266, 478, Aug. 3,
2007) (9/11 Act), which amended 49 U.S.C. 44901(g)(1), provides, in
pertinent part:
Not later than 3 years after the date of enactment of the [9/11
Act], the Secretary of Homeland Security shall establish a system to
screen 100 percent of cargo transported on passenger aircraft
operated by an air carrier or foreign air carrier in air
transportation or intrastate air transportation to ensure the
security of all such passenger aircraft carrying cargo.
As amended by the 9/11 Act, 49 U.S.C. 44901(g)(2) provides that the
system used to screen cargo on passenger aircraft shall provide a level
of security ``commensurate with the level of security for the screening
of passenger checked baggage,'' and directs that one hundred percent of
such cargo must be screened not later than August 3, 2010.
Summary of Interim Final Rule
Section 44901(g)(3)(B) explicitly authorizes TSA to issue an
interim final rule to implement the requirements. On September 16,
2009, TSA issued the Air Cargo Screening IFR implementing these 9/11
Act requirements, and sought comments on the provisions contained in
the IFR.\2\ Section 44901(g)(3)(B)(i) of the 9/11 Act requires TSA to
issue a final rule not later than one year after the effective date of
the IFR, or by November, 16, 2010. TSA was unable to meet the November
16, 2010, deadline due to changes that had to be made to the Final
Rule. Data from industry indicates that industry met the August 3,
2010, deadline for domestically up lifted cargo only. Neither the IFR
nor the Final Rule apply to international inbound cargo.
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\2\ 74 FR 47672. The IFR provides detailed information on TSA's
reasoning behind the regulatory provisions for the CCSP. For further
information refer to the IFR.
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Requirements of the IFR
The IFR established the Certified Cargo Screening Program (CCSP), a
program to certify shippers, indirect air carriers (IAC), and other
entities located in the United States to screen cargo prior to
tendering it to aircraft operators for transport on passenger
aircraft.\3\ The CCSP requires certified cargo screening facility
(CCSF) personnel to successfully undergo a TSA conducted security
threat assessment (STA) \4\ and submit to an evaluation of its facility
by a TSA-approved validator or TSA.\5\ Once certified, the CCSF must,
among other responsibilities:
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\3\ 74 FR 47686 and 47706.
\4\ 49 CFR 1549.111.
\5\ 49 CFR 1549.7.
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Implement a TSA-approved standard security program.\6\
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\6\ 49 CFR 1549.5.
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Ensure that key personnel with unescorted access to
screened cargo undergo an STA \7\ including (1) Each employee and
authorized representative who screens cargo or has unescorted access to
screened cargo, and (2) each security coordinator and alternate, senior
manager of the facility, and other individual who implements the cargo
screening program.
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\7\ 49 CFR 1540.203.
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Adhere to strict physical and access control measures for
the storage, handing, and screening of cargo.
Screen cargo using TSA-approved methods.
Initiate chain of custody measures to ensure the security
of the cargo from the time the CCSF screens the cargo until it is
loaded on passenger aircraft.\8\
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\8\ 49 CFR 1549.101(d).
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Appoint security coordinators at the corporate and
facility levels and alternates to be available 24 hours per day, 7 days
per week.
[[Page 51850]]
Apply for recertification, including a new examination by
TSA or a TSA-approved validator, every 36 months.
The IFR further stated that aircraft operators that wish to screen
cargo off-airport must become a CCSF, and adopt and implement a CCSF
security program for that purpose.\9\ Additionally, the IFR established
procedures under which firms may apply for TSA's approval to conduct
validation assessments of CCSF facilities.\10\ TSA believed these
procedures would help quickly process many applications for CCSPs in a
short amount of time.
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\9\ 49 CFR 1549.5.
\10\ 49 CFR part 1522.
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The IFR also amended the threat assessment provisions that
currently exist in 49 CFR part 1540, subpart C, for individuals who
work in the air cargo sector to enhance TSA's ability to effectively
conduct STAs.
Finally, the IFR explained the methodology by which TSA would
calculate a fee that TSA would charge for conducting STAs and presented
an expected fee range for these STAs. TSA invited comment on the amount
of the fee and the methodology used to calculate the fee but did not
establish a fee. The IFR explained that TSA would specify the final fee
amount in a separate notice in the Federal Register.\11\
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\11\ 74 FR 47683 and 47684.
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II. Summary of the Final Rule
In response to comments on the IFR, TSA decided to remove two major
requirements, explained below, concerning validation firms and
certification of aircraft operators. This final rule also makes a few
clarifications and other minor revisions such as typographical errors.
Further explanations of these changes can be found in section IV of
this rule, in the Section-by-Section Analysis of Changes.
TSA deleted part 1522 regarding validation firms and validators as
we do not believe they are needed. TSA will continue to conduct all
assessments of the facilities applying to become CCSFs because TSA has
the capacity to review and certify all CCSF applicants itself.
In addition, this final rule deletes the IFR requirement that an
aircraft operator must become certified as a CCSF in order to screen
air cargo off-airport. As explained in Section III. (Disposition of
Comments) of this preamble, TSA will continue to update the security
programs through the security program amendment process as described in
49 CFR 1544.105(c) and 156.105(c) for aircraft operators and foreign
air carriers to ensure that the same level of security applies to cargo
that those entities and CCSFs screen. Because aircraft operators will
need to meet the same substantive requirements as CSSFs, they do not
need to be certified under the CCSP to screen cargo off airport.
III. Disposition of Comments
TSA received approximately 40 comments from trade associations,
aircraft operators, including a few from individuals. The issues raised
in these comments are discussed below.
TSA Screening at Airports
Comment: Several commenters stated that TSA, not private industry
through the CCSP, should conduct screening of cargo to be transported
on passenger aircraft. These commenters stated that TSA should use
existing statutory authority to establish TSA-operated screening
operations at airports. One commenter stated that TSA should screen all
cargo transported on passenger aircraft because Congress created TSA to
replace screening by third parties. These commenters believe that TSA
screening is the only way to screen 100 percent of cargo on passenger
aircraft without impeding the flow of commerce. Some commenters
suggested that the CCSP must be a complement to, but not a substitute
for, a Federal air cargo screening program operated by TSA at all
domestic airports.
Other commenters favored the CCSP. The International Air Cargo
Association (TIACA) commented that either federalization or airline-
only screening would unduly crowd screening onto airport grounds,
potentially creating significant bottlenecks by imposing a one-size-
fits-all approach to air cargo screening. TIACA commented that the
flexibility allowed under the CCSP is a better fit with the diverse
needs of the air cargo supply chain.
TSA Response: The 9/11 Act required the Secretary of Homeland
Security to establish a system to screen 100 percent of cargo loaded in
the United States on passenger aircraft. TSA has determined the most
appropriate model to accomplish this mandate is for TSA to establish
screening standards that allows airlines, shippers, and IACs and other
entities to perform the necessary screening. The CCSP program satisfies
the statutory directive. The 9/11 Act, 49 U.S.C. 44901(g)(1), requires
TSA to ``* * * establish a system * * *'' for screening 100 percent of
air cargo, and does not require TSA to conduct the screening. The 9/11
Act provides that screening includes ``* * * a program to certify the
security methods used by shippers * * *'' and therefore, anticipates
that an entity other than TSA may conduct the screening to TSA
standards. 49 U.S.C. 44901(g)(5).
TSA believes that if TSA screened cargo at airports, the screening
process would very likely impede the flow of commerce as described in
the TIACA comment above. It would create many of the same problems that
would occur if aircraft operators screened 100 percent of cargo. There
is insufficient space at airports to screen the 7.6 million pounds of
cargo transported on passenger aircraft daily. TSA believes airport
screening would be time-consuming. A high volume of cargo reaches the
airports on skids or loaded into unit load devices, which TSA would
have to break down and screen, a process that could lead to congestion
at the cargo screening locations.
A fundamental principle of the CCSP is to provide stakeholders with
additional options for screening air cargo. Participation in the CCSP
allows shippers to move screening away from the airport to avoid the
bottlenecks that TSA expects would occur if all cargo were screened
there. The CCSP also allows industry participants to conduct screening
at stages earlier within the cargo supply chain and off-airport. Thus,
the CCSP gives industry control to schedule screening of the cargo at
the most financially sensible point in their business process while
still meeting all security requirements. Screening conducted by the
industry permits IACs and shippers to tender screened cargo to aircraft
operators so that it can be transported immediately on passenger
aircraft, thereby avoiding the backlog that would result from screening
solely by TSA or aircraft operators on-airport. TSA is confident that
the CCSP will achieve the security benefits that Congress sought in the
statutory mandate without causing unnecessary delays.
TSA believes the CCSP, supplemented by TSA screening at Category
II-IV airports \12\ and other measures TSA has already taken (such as
requiring 100 percent screening of cargo transported on narrow-body
aircraft), combined with cargo screened directly by aircraft operators,
has achieved the 100 percent screening requirement. TSA believes that
the CCSP concept provides the greatest
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degree of flexibility and efficiency and should be the centerpiece of
the current air cargo screening program. TSA will continue to screen
almost all cargo received at Category II-IV airports.\13\ Cargo
screened at these locations involves relatively lower volumes and
smaller pieces, which are conducive to screening by existing baggage
equipment. TSA will also continue to screen any cargo delivered to the
ticket counter for shipment, known as a counter-to-counter express
shipment.
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\12\ TSA classifies the over 400 commercial airports in the
United States into one of five airport security categories (I, II,
III, IV, and X) based on various factors, such as the total number
of take-offs and landings annually, the extent to which passengers
are screened at the airport, and other special security
considerations. In general, Category X airports have the largest
number of passenger boardings and Category IV airports have the
smallest.
\13\ A Category I airport is an airport where screening is
performed pursuant to TSA regulations and the number of annual
enplanements are 1 million or more. A Category X airport is an
airport where screening is performed pursuant to TSA regulations,
the number of annual enplanements is 5 million or more, and the
number of international enplanements is 1 million or more.
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Comment: The U.S. Chamber of Commerce recommended that TSA expand
the use of TSA-certified explosive-detection canines to screen large
air cargo consolidations.
TSA Response: TSA will continue to evaluate the need for additional
canine teams. In the future, TSA is also considering the use of TSA-
approved canine teams owned by regulated parties to screen air cargo.
Impact of the CCSP on Small and Mid-Sized Companies
Comment: Some commenters expressed the view that small and mid-
sized freight forwarders do not have the financial resources to
participate in the CCSP, and that the CCSP will put them out of
business, or impose significant economic burdens. One commenter cited
the costs that a CCSF would incur for maintaining a compliant facility
and ensuring adequate employee training as placing a burden on the
companies.
TSA Response: TSA designed the CCSP to give small- and medium-sized
companies several options to avoid unnecessary costs while achieving
the security benefits of the program. The CCSP is a voluntary program
intended to give industry the flexibility to respond to new security
requirements in the 9/11 Act. Participation in CCSP does not require a
business to purchase any costly screening equipment, because TSA
provides multiple options to participants. For example, entities that
wish to join the CCSP may choose to screen by conducting a physical
search of the cargo as they pack it for shipment. Physical search may
be more cost effective for companies that would have to screen smaller
volumes of cargo and for any company that is conducting the screening
as they pack the cargo for shipment, as many CCSFs do. A physical
search is likely to satisfy the screening requirement of the 9/11 Act
at a much lower cost for such companies than purchasing screening
equipment.
Moreover, a small- or mid-sized freight forwarder has several
options for getting its cargo screened that do not require
participation in the CCSP. They may choose to have their cargo screened
by a CCSF IAC, a CCSF independent cargo screening facility (ICSF), or
an aircraft operator, if that is more cost effective than participating
in the CCSP.
We believe that the most viable option for many small to medium
shippers and IACs who do not wish to join the CCSP may be to have their
cargo screened by ICSFs located away from the airport. This fee-based
solution provides the benefit of screening away from the potential
congestion and delay at the airport, without necessitating an
investment in facilities, training, or screening equipment. TSA has
published a list of all CCSFs IACs and ICSFs, as well as other IACs
authorized to transport screened cargo for CCSF shippers. See the
``Certified Cargo Screening Locations'' section at http://www.tsa.gov/what_we_do/layers/aircargo/certified_screening.shtm.
Comment: The House Committee on Homeland Security requested that
TSA consider expanding Screening Technology Pilot (STP) locations and
on-airport screening options to provide stakeholders, particularly
small businesses, with screening options that do not involve the
purchase of costly screening equipment.
The Committee also recommended that TSA find a way to incorporate
grants, tax incentives, low-interest loans, or innovative financing
measures into the CCSP.
TSA Response: TSA has attempted to mitigate the impacts of the new
air cargo program on small businesses by offering options, described in
the TSA Response immediately above, that allow small businesses to
choose how best to get their cargo screened.
The STP, a Congressionally-funded pilot program designed to test
screening technology, was a useful program that authorized TSA to
reimburse participants for a portion of the cost of acquiring screening
technology. At this time, the funding has been exhausted through
reimbursement to companies that participate in the CCSP. The
reimbursement did not include the cost of labor, training, consumables,
maintenance, facility security, or any other costs associated with the
CCSP. Therefore, it may not be the best option for small businesses. At
this time, TSA has no other program to provide financial assistance for
air cargo screening technology.
Validations by Independent Validation Firms
Comment: TSA received several significant comments on the
validation firm and validator requirements of the IFR. Some commenters
stated that TSA, not private entities, should perform the validations
because they view the function as ``inherently governmental.'' Other
commenters believed that TSA should bear the cost of the validation or
set a fee for the service. Several commenters were concerned that there
is an inherent conflict of interest between the facility and the
validator, because the facility would pay the validator to conduct the
assessment.
TSA Response: While TSA disagrees that the validation process set
forth in this rule requires industry to perform ``inherently
governmental'' functions, TSA has decided that it does not need
independent validators to perform assessments of CCSF applicants. TSA
is removing the validation firms and validators process in part 1522
because there were fewer CCSF applicants than TSA expected, and TSA is
capable of processing the applications itself. The IFR, published in
November 2009, included this feature based on a similar validation
program successful in the United Kingdom and a concern that TSA lacked
the capacity to quickly evaluate and certify the 15,000 applications
TSA estimated it would receive. The actual number of CCSF applications,
however, is much lower than the estimate. To date, TSA has certified
over 1,000 CCSFs, and is able to process the new applications without
the support of validation firms. These certified locations are already
screening a large volume of cargo destined for transport on passenger
aircraft. Further, we believe that the industry has achieved 100
percent air cargo screening for domestic uplift as of the beginning of
August 2010. While we may see additional CCSF applicants as shippers
decide they want to screen their own cargo rather than risking the
cargo being opened during screening downstream, TSA has determined that
it can handle the future facility assessment workload without undue
delay.
Under the final rule, applicants for the CCSP will not have to pay
a fee to independent validators, thereby reducing the cost of the CCSP.
Approximately $65.9 million in costs, discounted at 7 percent, over the
10-year period of the rulemaking were removed from the IFR to the FR as
a result of the elimination of the requirement for TSA-approved
validation firms (TAVFs). Discounted at seven percent, the following
are the
[[Page 51852]]
specific cost reductions to the respective impacted entities: $11.7
million for TAVFs, $54.0 million for CCSFs, and $0.2 million for TSA.
This reduction in the cost of CCSP participation should be particularly
helpful to the small- and mid-sized companies concerned that the cost
of joining the CCSP is too high.
Security Level of Cargo Screening Relative to the Security Level of
Checked Baggage Screening
Comment: One commenter argued that the CCSP does not provide a
level of security that is commensurate with the level of security for
passenger checked baggage, as required by the 9/11 Act. This commenter
stated that ``commensurate'' means ``equal'' and that such a standard
limits the discretion of TSA. According to this commenter, it would be
much easier for a third party to compromise the chain of custody under
the CCSP and tamper with screened cargo than it would be to infiltrate
the chain of custody for passenger-checked baggage. For example, this
commenter believes that tamper evident tape, which may be used as a
chain of custody procedure under the CCSP, is inexpensive, and could
easily be acquired or manufactured by a terrorist. This commenter also
believes that even if CCSFs use more technologically advanced methods
to protect the chain of custody, the length of time an item of cargo is
stored after it is screened and prior to its delivery to an airport
could provide third parties with time to break the chain of custody.
TSA Response: Section 44901(g)(2) of the 9/11 Act establishes the
parameters for meeting the 100 percent screening requirement--the
system must provide a level of security for cargo commensurate with the
level of security for checked baggage. ``Commensurate'' is not a
statutorily defined term and must be understood to have its ordinary
meaning of ``similar'' or ``analogous.'' ``Commensurate'' does not mean
``identical.'' Notably, it is not the ``method of screening'' that must
be commensurate with that of checked baggage, but the resulting ``level
of security'' that must be commensurate. Physical examination is but
one of many layers of security in place to protect air transportation.
Therefore, it is the entire system that must ultimately produce
security of cargo commensurate with that in place for checked baggage.
Section 44901(g)(5) defines ``screening'' of air cargo placed on a
passenger aircraft, and enumerates specific types of authorized
screening, including x-ray systems, explosives detection systems (EDS),
explosives trace detection, and explosives detection canine teams
certified by TSA. In addition to the particular screening technologies
and techniques listed, paragraph (g)(5) expressly provides that ``the
Administrator may approve additional methods to ensure that the cargo
does not pose a threat to transportation and to assist in meeting the
requirements of this subsection.'' A system of screening that utilizes
a combination of the screening methods planned for use in the CCSP will
provide a level of security commensurate with that in place for checked
baggage.
The methods of screening, in some cases, may be the same used for
checked baggage. By statute, however, checked baggage must be screened
using EDS. 49 U.S.C. 44901(d). There is no parallel requirement for
cargo in 49 U.S.C. 44901(g); rather, any one or more of a number of
methods, including EDS, may be used. Also, like checked baggage
security, the overall system will rely on layers of security to protect
cargo from terrorist threats. Those layers will include STAs of
individuals with unescorted access to cargo, physical protection of
cargo once it is screened, and chain of custody practices to protect
cargo from the time it is screened until it is tendered for transport
on passenger aircraft.
TSA believes that the chain of custody measures the CCSP requires
will provide a high degree of security for air cargo throughout the
supply chain. TSA has established multiple layers of security for cargo
as it travels through the supply chain. For example, the CCSP security
programs, which are sensitive security information (SSI), contain
requirements, such as the use of tamper-evident tape on cargo that has
been screened, and security measures for the trucks and other
conveyances that transport screened cargo to the airport. The transport
and handling measures established in the security programs for the CCSP
are similar to those already in place for the ground transport of
screened cargo that is in the custody of air carriers. Screened cargo
in the supply chain is handled by secure facilities and modes of
transport. Air cargo is not typically stored for any significant period
once it has been tendered for transport, as the very nature of air
cargo is to move materials as quickly as possible from shipper to
consignee.
TSA's Funding for Implementing the CCSP
Comment: The House Committee on Homeland Security expressed
concerns regarding the level of TSA's investment in the CCSP and
stressed the importance of TSA having appropriate resources to support
its regulatory oversight role. Specifically, the Committee noted that
TSA would need appropriate staffing levels for inspectors to be able to
certify TSA-approved validation firms, and process STAs for workers at
such firms and for CCSFs. The Committee suggested that TSA seek
multiple means of additional funding to ensure that the 100 percent
screening mandate is met, including seeking funds through the American
Recovery and Reinvestment Act (ARRA). The Committee was also concerned
that TSA would not have enough resources to certify enough CCSFs by the
August 3, 2010, deadline.
TSA Response: TSA has requested, and Congress has provided,
sufficient resources to attain the 100 percent screening requirements
set forth in the mandate. In addition, the FY 2010 Homeland Security
Appropriations Act provided nearly $15 million above the
Administration's request, including $3.45 million for additional air
cargo inspectors and $9 million for technology development. TSA
considered requesting ARRA funds, however, they are not available for
TSA staffing for the CCSP; Congress restricted ARRA funds to the
procurement and installation of checked baggage explosives detection
systems and checkpoint explosives detection equipment.
TSA concurs that it is important to have the resources to certify
CCSFs quickly so as not to disrupt commerce. In the months before the
requirement to screen 100 percent of air cargo became effective, TSA
coordinated with the different applicants to ensure that facilities
desiring to be CCSFs received an assessment as soon as the facility
declared that it was ready.
At the current pace of applications and certifications, TSA remains
confident that it will be able to certify all current (and a
significant number of additional) applicants that remain engaged and
interested in proceeding. TSA believes it also has the capability to
manage any short-term surges in activity. TSA will continue to monitor
and evaluate resource and funding levels, and will request increases
that may be required by the circumstances to carry out its oversight
responsibilities. After evaluating the flow of applications and the
certification process, TSA has determined that the usage of TSA-
approved validation firms is no longer required. Not having to certify
validation firms, as well as no longer needing to process STA's for
their workers, will provide TSA inspectors with some additional time
for oversight and compliance activities related to CCSFs.
[[Page 51853]]
Outreach to Stakeholders
Comment: The House Committee on Homeland Security urged TSA to
conduct additional industry outreach to encourage participation in the
CCSP. Suggestions for increasing CCSP participation through outreach
included: Utilizing existing federal supply chain programs, such as the
Customs-Trade Partnership Against Terrorism (C-TPAT) program to conduct
industry outreach and training on a larger scale; obtaining statistical
data on shippers from the U.S. Department of Commerce in order to
perform targeted outreach; providing low-cost training and information
sessions to small businesses; and increasing CCSP visibility to
industry trade publications.
TSA Response: To ensure the cargo and shipping industry are aware
of the impact and requirements of the 100 percent screening
requirement, TSA conducted outreach through multiple organizations, and
we continue our longstanding relationships with associations whose
members are impacted by the 9/11 Act. These organizations include
members of airports, airlines, and freight forwarders. TSA continues
its contact with associations such as the Air and Expedited Motor
Carriers Association, Air Forwarders Association, Air Transport
Association, American Association of Exporters and Importers, Cargo
Airline Association, Council of Supply Chain Management Professionals,
Express Delivery and Logistics Association, International Air Transport
Association, Meridian One Consulting, National Association of
Manufacturers, National Association of Wholesalers-Distributors,
National Customs Brokers and Forwarders Association of America, and
National Industrial Transportation League.
In addition, TSA representatives speak at trade association
conferences and participate in webinars and other public forums to
share vital information regarding the CCSP. This on-going effort will
continue throughout implementation of the CCSP.
In coordinating outreach efforts, TSA estimates that approximately
20 of the largest airports within the United States disproportionately
account for most of the air cargo transported on passenger aircraft,
and these locations are primarily the largest (Category I and Category
X) airports. TSA continues its outreach efforts to these airports to
ensure widespread understanding of the CCSP.
Applicability of CCSP to Cargo Loaded Outside the United States
Comment: One association commended TSA for clarifying that the IFR
does not apply to cargo that is loaded on passenger aircraft outside
the United States. This commenter supports TSA's two-pronged approach
of working with the International Civil Aviation Organization (ICAO)
standards, and applying risk assessments for air cargo. The commenter
suggested that TSA should leverage other Government programs, such as
pertinent U.S. Customs and Border Protection (CBP) programs, and adopt
best security practices currently in use in other countries for
international inbound cargo.
TSA Response: TSA is working closely with its foreign government
counterparts to leverage existing air cargo security practices and to
work towards compatibility across systems to the greatest extent
possible. TSA has been working in both bilateral and multilateral
forums to better understand the air cargo security regimes currently in
place in other countries in order to promote best practices while also
enhancing air cargo security systems, where necessary, in order to
ensure commensurate levels of security from system to system. This is
an ongoing effort and will take considerable time to review and analyze
the information, and to coordinate and collaborate with our partners
and industry stakeholders in the development of mutually recognizable
systems. TSA is hopeful that with the continued cooperation of our
international partners, this work will promote uniformity and
recognition among countries. In addition, TSA has aligned its CCSP as
closely as possible with CBP's C-TPAT program and continues to seek
opportunities to create efficiencies where possible.
Aircraft Operators or Foreign Air Carriers as CCSFs
Comment: The IFR required any air cargo screening facility that is
off-airport, including one operated by an aircraft operator, to become
a CCSF in order to screen cargo. Several commenters objected to this
requirement, stating that this requires aircraft operators to comply
with two separate security programs. They claimed that this was
unnecessary. However, another commenter argued that exempting aircraft
operators from the certification requirements would be inappropriate;
it would produce an economic disadvantage for non-air carriers that
currently operate as CCSFs. A trade association argued that this
portion of the rule (Sec. 1544.205(g)(3)) should be removed only if
there is: (1) No difference in security requirements between existing
air carrier rules and CSSP requirements, and (2) there is no economic
benefit favoring air carriers over non-air carriers.
TSA Response: TSA has evaluated the issue of aircraft operators and
foreign air carriers operating off-airport screening facilities, and is
amending the IFR to eliminate the requirement for aircraft operators
and foreign air carriers to become CCSFs in order to screen off-
airport. The security programs for aircraft operators have been and
will continue to be amended to ensure that the same level of security
involving screened cargo are equivalent to that for CCSFs. Because
aircraft operators will need to meet the same substantive requirements
as other CCSFs and CCSFs will no longer need to be validated by a third
party, TSA does not believe that non-aircraft operators will be at a
disadvantage.
Comparable Programs
Comment: One commenter commended TSA for using some of the same
chain of custody requirements for the CCSP as for the IAC Standard
Security Program.
TSA Response: In developing the CCSP, TSA tried to leverage the
existing IAC program to the extent possible. Using the IAC program as a
base, TSA strengthened those requirements for handling screened cargo
in the CCSP.
Comments: Several commenters expressed the view that compliance
with other cargo security programs should substitute for compliance
with TSA's regulation. Commenters listed a number of programs that they
believed provide comparable security. A trade association expressed
concern that many of its members have to comply with security
provisions in other government programs, including DOD's National
Industrial Security Program Operating Manual (NISPOM), International
Traffic in Arms Regulations (ITAR), Export Administration Regulations
(EAR), and C-TPAT. The commenter urged TSA and other agencies to
consider recognizing security requirements in each other's programs as
being commensurate with one another.
Another association also recommended aligning C-TPAT and CCSP
security requirements.
TSA Response: TSA structured the CCSP to incorporate secure
practices recommended by industry representatives, including many of
the security measures and processes already used in programs such as C-
TPAT and
[[Page 51854]]
Transported Asset Protection Association, to the extent that these
programs were compatible with the security and other requirements of
the CCSP. Initially, TSA structured the CCSP to basically align with
CBP's C-TPAT program following its structure in areas such as: Facility
security, background checks, and basic chain of custody. However; there
are key differences that should be noted: (1) The CCSP requires
individuals to have a TSA security threat assessment, (2) individuals
must be trained and implement screening procedures, (3) individuals
must complete training specified by TSA, and (4) each entity is
identified by site-specific methods rather than company-wide methods.
Additionally, TSA structured the CCSP to incorporate industry security
``best practice'' procedures recommended by industry representatives,
including many of the security measures and processes already used in
programs such as C-TPAT and Transported Asset Protection Association,
(TAPA).
The CCSP was established to enable a flexible solution for
achieving the U.S. domestic 100 percent screening requirements. The air
cargo security environment will continue to change and therefore the
security practices, both established by TSA and practiced by industry
or other government agencies will continue to change. TSA will maintain
its close working relationship with key stakeholders and evaluate
ongoing security measures and processes as the threat and risk to air
cargo change. This may include incorporating additional measures and
practices into the CCSP.
Certification for CCSPs
Comment: One commenter recommended that TSA should allow companies
to participate in the CCSP on a corporate basis, rather than have to
enroll on a facility-by-facility basis. Under this scenario, TSA would
certify a company as being CCSP-compliant through random inspections of
a sampling of facilities per corporate entity.
TSA Response: TSA is retaining the CCSP as a facility-based
program. In order to achieve the level of security that is the goal of
the CCSP, every participating facility must be considered individually
because of its unique design and security configuration. While a
corporation may direct the types and level of security at its
facilities, the CCSF must account for the security of cargo at each
location where cargo is screened, packed, or consolidated before the
cargo is transferred to an aircraft operator. TSA must be confident
that each location will meet TSA's CCSF standards.
Comment: Several commenters feared that there may be a backlog of
CCSF applications, and that it could take TSA over six months to
certify a facility to become a CCSF. Commenters urged TSA to take
measures to avoid disruptions and dislocations to the cargo shipping
industry.
TSA Response: To keep up with the CCSF applicant pool, TSA
prioritizes, coordinates, and assesses any CCSF facility based on the
readiness of the CCSF facility to meet the requirements of the security
program. Some applicants can be certified sooner than others can. TSA
has found that IACs applying for the program are often ready to
implement the regulatory security requirements of the CCSP, and TSA can
certify them quickly. TSA does not expect future delays in certifying
CCSFs.
Security Threat Assessments
Comment: One commenter stated that the CCSP's use of name-based
STAs provides less security than criminal history records checks
(CHRCs), which are required for individuals with access to passenger
baggage. This commenter believed that STAs by themselves are not a
robust enough vetting tool for the CCSP, and that all individuals who
maintain unescorted access to air cargo should be vetted according to
the same standard--a fingerprint-based CHRC, accompanied by an STA.
TSA Response: TSA agrees that fingerprint-based CHRCs provide a
greater degree of security than the STA requirement in this final rule,
and that there should be congruency among the STA requirements for
workers in functions that present similar security concerns, such as
checked baggage screeners and cargo screeners. TSA is considering
proposing a rulemaking that would provide for more consistent
application of the CHRC requirement in STAs, including STAs for air
cargo workers. Rather than addressing a CHRC requirement for air cargo
workers on a program-specific basis in this final rule, TSA intends to
address the CHRC requirement in the broader context of all TSA
programs. TSA believes this approach will result in a more consistent,
efficient, and equitable outcome on this issue.
Comment: Several commenters objected to the five-year renewal
requirement for STAs, stating their belief that it is overly burdensome
to industry. Commenters believed that this is a particular issue for
express consignment operators, who may find it difficult to segregate
their employees who handle air cargo, and therefore would have to issue
hundreds of thousands of STAs across their industry. These commenters
stated that only a name change should trigger a new STA requirement.
These commenters maintain that TSA tools, such as the IAC Management
System (IACMS), provide the means necessary to continually check
applicant names against watch lists, and should obviate the need for a
reapplication process, except for cases where a person's name changes.
TSA Response: The five-year renewal requirement is consistent with
the duration of renewal requirements in other similar programs, such as
national security clearances administered by the Office of Personnel
Management, the CBP Free and Secure Trade Credential, the CBP Nexus
credential, and TSA's Transportation Worker Identification Credential
(TWIC). It is important for TSA to have current biographic information,
such as address, to identify the individual and to administer the
program effectively. For example, even after an individual successfully
completes the initial STA, he or she is continually re-checked against
various databases and watch lists; in the event of a subsequent match,
TSA needs accurate information regarding the individual to distinguish
similar names and to contact the individual with information about
redress rights if subsequent vetting produces a match. If TSA renews
the STA only as often as the individual's name changes, the other
important biographic data may become stale. A system that only tracks
the names of individuals, such as the IACMS, is therefore not an
adequate substitute for periodic renewals.
Comment: Several commenters expressed their belief that requiring
an STA for certain individuals is duplicative and unnecessary. These
parties submitted that individuals who have already completed an STA
for airport credentialing purposes should not have to reapply for
another STA under the CCSP. A third commenter approved of TSA's
decision to accept Hazardous Materials Endorsements, TWICs, or Free and
Secure Trade cards in lieu of redundant background checks for air cargo
screening operations.
TSA Response: TSA attempts to avoid unnecessary redundancy in STA
requirements. Therefore, TSA regulations provide for the possibility of
comparable STAs. If TSA determines that another STA conducted by TSA or
by another government agency is comparable to the STA required by part
1540, subpart C, individuals who have successfully completed such a
[[Page 51855]]
comparable STA are not required to undergo another STA under part 1540,
subpart C. 49 CFR 1540.203(f).
TSA has already determined that an STA conducted for purposes of
security identification display area (SIDA) access at airports, that
is, a CHRC conducted in accordance with 49 CFR 1542.209, 1544.229, or
1544.230 that includes a name-based check conducted by TSA, is
comparable to the check required under part 1540, subpart C. 49 CFR
1540.203(h). For other security threat assessments conducted by a
governmental agency, the commenter may request a determination that the
other governmental STA is comparable to the STA required under part
1540, subpart C. 49 CFR 1540.203(f), (g). If TSA grants the
determination of comparability, the individuals who have successfully
completed such a comparable STA are not required to undergo another STA
under part 1540, subpart C. A background check or investigation
conducted by a non-governmental agency would not qualify as a
``comparable'' STA. Non-governmental agencies are not necessarily
focused on the factors underlying a governmental STA, and are unlikely
to have access to the depth and breadth of information available to a
governmental agency. Therefore, TSA does not consider the STA required
by part 1540, subpart C, to be duplicative with such non-governmental
checks.
Screening of Animals
Comment: The Association of Zoos and Aquariums expressed concern
with screening procedures for live animals, and warned that opening
containers with live animals inside could create potential hazards for
the animals, handlers, and cargo personnel.
TSA Response: TSA agrees that screening live animals provides
special challenges. Aircraft operator and CCSF security programs, as
required under 49 CFR parts 1544, 1546, and 1549, already provide
procedures for screening live animals to ensure the safety of both the
screeners and the animals.
Use of Non-Citizens To Perform Screening
Comment: One commenter expressed concern that the air carriers' and
freight forwarders' use of non-U.S. citizens to screen cargo violates
International Traffic in Arms Regulations (ITAR) and Export
Administration Regulations (EAR) for cargo that is designated as
sensitive military technology.
TSA Response: Section 1549.103(d) requires, in part, that each
certified cargo screening facility must ensure that each individual who
screens cargo or who supervises cargo screening is a citizen or
national of the United States or an alien lawfully admitted for
permanent residence. TSA sets minimum standards for the screening of
cargo to be transported on passenger aircraft, which the CCSF must
meet. However, if there are additional standards that apply, for
example, for sensitive military technology, the CCSF must meet those
additional requirements as well.
Time Concerns
Comment: Several commenters expressed concern about the time it
takes a CCSF to break down palletized shipments for screening.
TSA Response: TSA agrees that having to break down and screen cargo
consolidations at the airport could lead to significant delays. The
CCSP allows entities to screen cargo before it is consolidated. TSA
will continue to evaluate technologies that allow for bulk screening of
some types of consolidated cargo. As such technologies become
available, TSA may authorize their use.
Reporting Burden; Estimated Number of CCSFs
Comment: Several commenters stated that TSA's estimate of 7,514
entities seeking CCSP membership annually was an overestimate, but that
TSA's estimate of annual cargo reporting burden of 293,037 hours was an
underestimate. Furthermore, one air carrier argued that TSA's estimate
that CCSFs will complete monthly cargo reports at an estimated time of
one hour per week is an underestimate of the time required. The air
carrier maintained that dealing with thousands of shipments and
hundreds of thousands of pieces in a reporting period produces a data
collection burden that will far surpass TSA's estimate.
TSA Response: With respect to the estimate of 7,514 entities
applying to the CCSP annually, TSA agrees that this was an overestimate
and has revised the population estimate in the regulatory evaluation
and fee model so that this final rule better reflects where the CCSP is
today. The new estimate also takes into account recent information from
shippers and IACs as to the types and sizes of entities that will most
likely join the CCSP in the future.
TSA's original estimate that it takes CCSFs one hour per week to
report monthly cargo statistics was based on how long it might take a
CCSF to record the data by hand on the form provided by TSA, resolve
any identified discrepancies in that data, and transmit that
information to TSA.
Subsequently, TSA created the Cargo Reporting Tool (CRT) as a
convenience for CCSFs, IACs, and aircraft operators, to allow these
entities to more easily submit cargo screening data to TSA. A small
group of air carriers, freight forwarders, and shippers was asked to
beta test the CRT for approximately one year and the users indicated it
took approximately one hour to enter information into the system.
Accordingly, TSA believes that the one-hour time limit is a reasonable
estimate, and is retaining this estimate for the final rule.
In addition, TSA is developing an Air Cargo Data Management System
(ACDMS) to facilitate compliance with this requirement and minimize the
reporting burden on industry. The ACDMS will allow industry to submit
certain information to a single point of entry online, which then will
provide industry access to several systems and services.
Comment: The House Committee on Homeland Security asked TSA to
review the recordkeeping provisions to ascertain how to streamline
these requirements while maintaining the appropriate regulatory
oversight.
TSA Response: TSA reviewed the recordkeeping requirements \14\ and
has decided to maintain these recordkeeping requirements. These
requirements are consistent with those required by other regulated
entities within the air cargo supply chain (for example, air carriers,
aircraft operators, and indirect air carriers). These requirements are
necessary to ensure that regulated parties are in compliance with CCSF
regulations. Additionally, TSA is developing ACDMS to assist industry
in complying with this requirement. TSA expects the ACDMS to reduce the
time required to comply with the recordkeeping requirements.
---------------------------------------------------------------------------
\14\ Section 1549.105.
---------------------------------------------------------------------------
Issuance of IFR
Comment: One commenter expressed the view that TSA's issuance of an
IFR was inappropriate, and that TSA should have provided prior
opportunity for public comment.
TSA Response: The 9/11 Act required TSA to put in place an air
cargo screening program within a short time period. Accordingly, 49
U.S.C. 44901(g)(3)(A) provides that ``the Secretary of Homeland
Security may issue an interim final rule * * * to implement this
subsection without regard to the provision of chapter 5 of title 5.''
Thus, Congress concluded that the significant benefits of strengthening
air cargo security within the statutory
[[Page 51856]]
time period warranted implementing the program through an IFR. TSA
could not have had the CCSP operational by the August deadline without
being able to issue an IFR.
TSA conducted outreach to a wide range of stakeholders before
issuing the IFR. In addition, TSA provided a 60-day notice and an
opportunity to submit written comments on the IFR. TSA considered these
comments in developing this final rule and before establishing the
final STA fee.
Screening Technology
Comment: One commenter expressed the view that most of the approved
screening methods and equipment are appropriate for the passenger
screening environment, but are ill-suited to the air cargo environment
where palletized or other consolidated shipments are the norm. The
commenter stated that CCSFs are currently technologically incapable of
effectively screening large pallets of cargo without breaking down
shipments and urged TSA to use the $4 million Congress appropriated to
TSA for FY2010 to develop and deploy technologies capable of screening
skids and pallets, including vapor and metal detection technologies.
Another commenter also urged TSA to test and approve effective
screening technology equipment that could be used to screen palletized
shipments.
TSA Response: TSA is exploring newer technologies for screening
cargo, especially those technologies that screen palletized and
consolidated cargo. In order to effectively evaluate and qualify
technologies for screening cargo, TSA is working closely with the DHS
Science and Technology Directorate (S&T), and the Department of Energy
(DOE) National Laboratories and Technology Centers to continue to
evaluate new and emerging technologies. TSA has qualified three
technologies for screening some skid-level cargo configurations and
commodities on the Air Cargo Screening Technology List (ACSTL), and is
currently in the process of evaluating additional large aperture
technologies for screening cargo. A non-SSI version of the ACSTL may be
found at http://www.tsa.gov/assets/pdf/non_ssi_acstl.pdf. In addition
to these efforts, screening protocols in security programs have also
been refined for use in a cargo environment.
Congress appropriated $18 million for TSA to specifically evaluate
and deploy screening technologies. TSA added to the Congressional
appropriation to fund a $40 million Screening Technology Pilot (STP)
for IACs. This pilot is evaluating the effectiveness of screening
technologies for screening cargo at the piece level, as well as for
cargo consolidations, such as TSA Advanced Technology X-Ray (AT X-Ray)
and Explosives Trace Detection (ETD), by commodity class, at each
participant's consolidation facility. TSA provided some distributed
funding to 47 participants at 111 different locations among 17 airports
nationwide that handle large volumes of cargo, and that build cargo
pallets for transport on passenger wide-body aircraft. TSA's objectives
for the pilot program include determining the effectiveness of
screening technology on various commodity classes of cargo, including
palletized shipments. The pilot is evaluating 11 different X-ray models
and 4 different ETD models, totaling 226 systems.
TSA was also appropriated $4M in FY2010 for the evaluation and
qualification of other technologies for air cargo screening including
metal detectors and vapor detection systems with the intent to focus on
perishable commodities and screening skids and pallets. These types of
systems are currently undergoing the qualification process and results
of these evaluations will be complete by the fourth quarter 2010.
Comment: A commenter requested that TSA ensure transparency in its
review procedures and expedite its evaluation of new technologies. In
addition, the House Committee on Homeland Security also expressed
concerns about TSA's approval of new technologies, adding their view
that the lack of a Qualified Product List (QPL) for cargo screening
technology makes industry stakeholders hesitant to purchase expensive
equipment on the Approved List of Technology without the assurances
that this equipment will be certified in future years. The Committee
urged TSA to work with S&T to strengthen their processes in order to
give timely attention to the development and certification of
technology for cargo screening.
TSA Response: DHS has expedited the evaluation process for new
technologies by instituting simultaneous field and laboratory testing,
and is working to qualify dozens of technologies. TSA is working
closely with DHS S&T and the DOE National Laboratories to determine new
and emerging technologies that exhibit proficiency in detecting
improvised explosive devices and other prohibited items. Additionally,
TSA's implementation of the CCSP is also mitigating the impact of
screening consolidations on the air cargo supply chain, as CCSFs may
tender screened cargo that does not need to be broken down to the piece
level for additional screening.
TSA has expedited the evaluation of these new technologies and is
working to encourage industry to invest in new technology research and
development by releasing Requests for Information (RFIs), holding
industry forums with potential developers, and conducting other ongoing
outreach. All of these efforts support the development and
qualification of additional cargo screening technologies providing more
technologies to meet industry's needs. As part of these activities, TSA
must be confident that new technologies will meet the CCSP's security
objectives before approving them. TSA has posted a Qualified Technology
List.\15\ TSA will continually update this list with additional
qualified technologies as those qualifications are completed.
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\15\ See http://www.tsa.gov/what_we_do/layers/aircargo/certified_screening.shtm#approved for information about the CCSP,
including links to qualified vendor lists.
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IV. Section-by-Section Analysis of Changes
Part 1515--Appeal and Waiver Procedures for Security Threat Assessments
for Individuals
In part 1515 TSA removed references to part 1522, validation firms,
and validators because that part is being removed from the CFR, as
discussed below.
Part 1522--TSA-Approved Validation Firms and Validators
As explained in Section III., TSA decided it does not need
independent validators to perform assessments of CCSF applicants
because TSA has the capacity to review and certify all CCSF applicants
itself. Thus, TSA has deleted part 1522 in its entirety.
Part 1540--Civil Aviation Security: General Rules
TSA is amending Sec. 1540.201(a), Applicability and terms used in
this subpart, to correct an incorrect citation. The IFR reference to 49
CFR 1549.113 was incorrect and is changed in this final rule to 49 CFR
1549.111.
Part 1544--Aircraft Operator Security: Air Carriers and Commercial
Operations; and Part 1546--Foreign Air Carrier Security
Under the IFR, Sec. 1544.105(a) provided that each aircraft
operator must submit a security program to TSA at least 90 days before
the intended date of passenger operations. In this final rule, TSA
deleted the term ``passenger'' from the provision, because the
requirement
[[Page 51857]]
applies to both passenger and all-cargo operations.
Paragraphs (g)(3) of Sec. Sec. 1544.205 and 1546.205, Acceptance
and Screening of Cargo, Subpart C, of the IFR provided that an aircraft
operator that screens cargo off-airport must become a certified cargo
screening facility in accordance with part 1549. In response to
comments, TSA is deleting this requirement for both aircraft operators
and foreign air carriers for the reasons stated in Section III. of this
preamble.
Part 1548--Indirect Air Carrier Security
Sections 1548.15(a) and Sec. 1548.15(a)(2) incorrectly referred to
the ``aircraft operator.'' TSA corrected these sections by inserting
the word ``indirect air carrier'' in place of ``aircraft operator.''
Part 1549--Certified Cargo Screening Program
TSA clarified the language in Sec. 1549.7(b)(1) to make it clear
that a CCSF must apply for renewal of its security program and its
certification every 36 months.
V. Proposed Fee for Security Threat Assessments
TSA is authorized to collect fees to offset the cost of conducting
security threat assessments (STAs). 6 U.S.C. 469.
TSA issued the Air Cargo Security Requirements final rule on May
26, 2006 (2006 rulemaking),\16\ which, in part, required certain cargo
workers of aircraft operators, foreign air carriers, and indirect air
carriers (IACs) to obtain a security threat assessment. That final rule
established a fee for STAs of $28, and incorporated the fee amount in
49 CFR 1540.209. TSA published the Air Cargo Screening IFR on September
16, 2009,\17\ that establishes requirements for certain additional
individuals to successfully complete security threat assessments
conducted by TSA. These individuals are CCSF employees and authorized
representatives that screen cargo, have unescorted access to screened
cargo or carry out certain other cargo security duties. The IFR amended
Sec. 1540.209 to remove the specific fee amount. In the preamble to
the IFR, we described how TSA would calculate the fee for STAs, and
stated that the fee would be between $13 and $21, depending on the size
of the population and whether costs involved in the calculation may
change. We invited comment on the proposed fee, and the methodology and
population estimates we used to arrive at the proposed fee. We stated
that TSA would publish specific fee amounts and changes to fee amounts
as a notice in the Federal Register.
---------------------------------------------------------------------------
\16\ 71 FR 30478.
\17\ 74 FR 47672.
---------------------------------------------------------------------------
However, since the IFR, TSA has further reviewed costs and
population data. Due to significant decreases in the population
estimate, the fee necessary to recover our costs of conducting threat
assessments would need to be increased. In this final rule, we propose
that the user fee for the security threat assessments under 49 CFR
1540.209 will be between $31 and $51. As stated above, we will announce
the final fee in a notice in the Federal Register.
Discussion
TSA proposes a fee range of $31 to $51 for STAs for aircraft
operators, foreign air carriers, and IAC personnel who have unescorted
access to screened cargo to be transported on passenger aircraft,
screen cargo, supervise the screening of cargo, or perform certain
other security functions as provided for in Sec. 1540.201.\18\
Applicants who have previously completed a TSA STA under the Air Cargo
Security Requirements final rule, 71 FR 30478 (May 26, 2006) (2006
rulemaking), were subject to the security fee in effect at that time
and will not be subject to this fee until their existing STA reaches
its five year expiration mark. At the time of expiration, applicants
re-applying for an STA will be asked to pay a new air cargo screening
fee that will be between $31 and $51.
---------------------------------------------------------------------------
\18\ Section 1540.209 of the 2006 rule stated that a fee of $28
is required for TSA to conduct an STA. The 2009 IFR, however,
revised Sec. 1540.209 so that the regulation no longer contains a
specific fee amount. Section 1540.209 now states that TSA will
publish fee amounts and any revisions to the fee amounts as a notice
in the Federal Register.
---------------------------------------------------------------------------
To ensure consistency and equity across the entire air cargo
community, TSA combined the costs and populations of individuals, or
applicants, who would need STAs under both the 2006 IAC Air Cargo
Security Requirements Final Rule and the 2009 IFR to create one
harmonious fee. TSA calculated the fee based on historical counts of
IAC applications and an estimate of the number of CCSF applicants
(population), the cost of processing the applications, the cost of
performing the STAs, and the cost of maintaining the information
systems to support the process. Table 1, below in the Costs section,
presents the calculations supporting the estimated fee.
Costs
TSA proposes that individuals required to undergo an STA would be
required to pay a fee to cover the following costs:
Table 1--Air Cargo Cost Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operational year 1st Year 2nd Year 3rd Year 4th Year 5th Year Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost Components:
Name Check.......................................... $445,705 $659,710 $874,730 $721,160 $557,350 $3,258,656
Platforms/Systems................................... 3,240,521 1,890,265 1,718,315 1,781,956 1,845,597 10,476,654
Personnel........................................... 2,538,286 2,489,620 2,663,626 2,685,010 2,706,329 13,082,872
-----------------------------------------------------------------------------------------------
Grand Totals.................................... 6,224,512 5,039,595 5,256,671 5,188,126 5,109,276 26,818,182
--------------------------------------------------------------------------------------------------------------------------------------------------------
For the TSA STA, each applicant's information will be name-checked
against multiple databases and other information sources. The threat
assessment process includes an appeals process for individuals who
believe the records upon which TSA bases its determination are
incorrect. TSA would also need to implement and maintain the
appropriate systems, resources, and personnel to process applicant
information and to allow TSA to receive, and act on, the results of the
STA.
TSA's fee methodology begins with estimating the unit cost for each
name-check, and then builds on costs for threat assessment investments
used by all applicants. These investments are estimated as fixed costs
over a five-year period and then equally distributed to all applicants
over that same five-year period. In doing so, TSA has established a
constant fee that will be imposed
[[Page 51858]]
equitably across the population that is receiving and benefiting from
this unique service.
TSA estimates that the cost, net of appropriations,\19\ of STA
services for both the IAC and CCSF populations will be $26,818,182 over
five years. The estimate for STA services includes $3,258,656 for TSA
name-based checks, $10,476,654 for platforms/systems costs, and
$13,082,872 for fully-loaded personnel costs necessary to facilitate
the STA processing. TSA arrived at these cost estimates using
information gathered from subject matter experts in the program office.
Please see Table 2 below for detailed breakout of the Air Cargo fee:
---------------------------------------------------------------------------
\19\ TSA utilized appropriations to fund certain start-up
systems costs. These appropriations have not been included in the
fee model and therefore, will not be recovered through the
imposition of security fees.
Table 2--Air Cargo Fee Breakout
------------------------------------------------------------------------
Cost category Total cost Fee (%)
------------------------------------------------------------------------
Security Threat Assessment...... $3,258,656 12
Equipment/Systems............... 10,476,654 39
Personnel....................... 13,082,872 49
---------------------------------------
Total....................... 26,818,182 100
------------------------------------------------------------------------
Population
TSA estimates that approximately 651,713 applicants would be
required to complete a STA during the next five years of the program.
This estimate is derived from the following population figures that
have been gathered for specific segments of the regulated population.
Table 3--Air Cargo Population Estimates
----------------------------------------------------------------------------------------------------------------
Operational year 1st Year 2nd Year 3rd Year 4th Year 5th Year Total
----------------------------------------------------------------------------------------------------------------
CCSP:
Applicants.................... 30,165 67,598 53,878 50,852 55,370 257,863
IAC:
Applicants.................... 58,976 64,344 121,068 93,380 56,100 393,868
-----------------------------------------------------------------------------
Grand Totals.............. 89,141 131,942 174,946 144,232 111,470 651,731
----------------------------------------------------------------------------------------------------------------
The CCSP population segment includes an estimated number of STAs to
be performed for CCSP enrolled shippers and independent cargo screening
facilities from 2010 to 2014. The number of STAs is based on a
projected 1,745 entities and an average 131 STAs per entity over five
years. The number of projected entity enrollments and average number of
STAs per entity were based on information known about currently
enrolled CCSFs and the types of entities that may enroll in the future.
The turnover estimate is based on the 2009 BLS JOLT transportation,
warehousing, and utilities worker hires rate. The turnover rate is also
used to estimate the number of employees that received an STA in 2009,
which would still be employed in 2014 when they are required to renew
their STA. For the IAC population segment, TSA utilized historical
actual enrollments over the past four years to develop an estimate for
the next five years.
When the IFR was published, TSA anticipated as many as 15,000
applicants would apply to participate in the CCSP. This was based on
the assumption that the CCSP would be comprised of a high number of
individual shippers. TSA surmised that individual shippers would
participate in the program to screen their own cargo to minimize
additional handling and the potential for delay or damage to the cargo
if it were screened at a later point in the supply chain. Instead, the
indirect air carrier industry (i.e., freight forwarders) led enrollment
in CCSP and has taken on a significant percentage of the screening
performed under the program. This has resulted in significantly fewer
applicants and participants in the program than originally estimated,
as a single indirect air carrier has the capacity to screen cargo for
multiple shippers. This redistribution of screening led to a
significant reduction in the number of STAs required by personnel who
have access to screened cargo.
TSA will continue to work to minimize all costs and will finalize
the proposed fee in a notice in the Federal Register. Additionally,
pursuant to the Chief Financial Officers Act of 1990 (Pub. L. 101-576,
104 Stat. 2838, Nov. 15, 1990), DHS/TSA is required to review fees no
less than every two years (31 U.S.C. 3512). Upon review, if TSA finds
that the fees are either too high (that is, total fees exceed the total
cost to provide the services) or too low (total fees do not cover the
total costs to provide the services) TSA would adjust the fee. Finally,
TSA would be able to adjust the fees for inflation following
publication of the final rule. If TSA were to adjust the fees for this
reason, TSA would publish a notice in the Federal Register notifying
the public of the change.
Fee Range
The fee TSA establishes for the STA should cover all the costs
related to the STA process. TSA estimates that the final fee to the
applicant will be between $31 and $51 per applicant based on the total
estimated cost of services provided ($26,818,182). This cost will be
equally apportioned to the estimated population (651,731) receiving the
threat assessment service. The resulting fee will be sufficient to
fully recover the remaining STA costs.
TSA invites comment on the proposed fee range of $31 to $51 and the
methodology and population estimates we used to arrive at this amount.
Additional detailed information regarding the fee determination has
been provided in the ``Air Cargo Screening Security Threat Assessment
Fee Development Report.'' This report
[[Page 51859]]
has been placed in the public docket established for this rulemaking.
After reviewing all comments received, TSA will issue a notice in the
Federal Register that summarizes and addresses the comments we receive,
and establishes the final fee amount, after which the fee will be
charged to applicants.
Revised Sec. 1540.209 provides that TSA will calculate fees for
STAs based on widely accepted accounting principles and practices and
in accordance with the provisions of 31 U.S.C. 9701 and other Federal
law as applicable.
Comments on the Fee Calculation
TSA received two comments on the IFR relating to the STA fee. The
comments raised several points, discussed below.
Comment: Two commenters stated that the proposed fee range in the
IFR indicated that TSA has been overcharging by applying an STA fee of
$28 for IACs since the 2006 rulemaking.
TSA Response: TSA based the fee of $28, established in 2006, on the
population and costs of conducting STAs only on cargo workers covered
under the 2006 rulemaking. TSA set that fee to cover TSA's cost of
conducting STAs for that population. Further, as we established the
CCSP in the 2009 IFR, both the overall estimated costs of processing
the STAs and the overall number of estimated individuals that would be
required to undergo the STA increased. Because the IFR population
estimate had increased in greater proportion to the costs, TSA
estimated a fee range of $13 to $21. Ultimately, in this final rule,
TSA utilized the most robust cost and population estimates to determine
the STA fee range. Compared to IFR estimates, both cost and population
estimates have decreased. But because the population estimate decreased
in greater proportion to the cost estimate, TSA must increase the fee
to a range between $31 and $51 to recover the full cost of the STA
services from the estimated population regulated under this rulemaking.
Comment: A commenter stated that TSA's failure to impose fees for
processing the STAs for CCSF applicants prior to this notice amounted
to discrimination against the regulated entities that have been paying
the fee of $28 under the 2006 rulemaking. The commenter believes that
TSA should have waited to process STAs for the CCSFs until we had the
rulemaking authority in place to charge fees.
TSA Response: TSA considered it necessary to initiate the CCSP in
order to meet the mandatory screening requirements imposed by the
Implementing the Recommendations of the 9/11 Act. To protect the public
from explosives on passenger aircraft, Congress required that 50
percent of cargo transported on passenger aircraft be screened by
February 3, 2009, and that 100 percent of such cargo be screened by
August 3, 2010. TSA commenced a screening pilot to build the CCSP so
that industry could meet the deadlines of the 9/11 Act. STAs were
needed to implement the pilot program to ensure that key personnel with
unescorted access to screened cargo, and thus, the opportunity to
compromise security, were checked against the relevant domestic and
international watch lists.
VI. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. OMB has approved
information collection requirements associated with this rule and has
assigned OMB Control Number 1652-0053 to these collections. However,
TSA has adjusted its burden estimates to reflect information actually
collected following the publication of the IFR, as well as the
elimination of TAVF requirements from the IFR to the final rule, and
has submitted the following information requirements to OMB for its
review.
Title: Certified Cargo Screening Program Final Rule.
Summary: Section 1602 of the Implementing Recommendations of the 9/
11 Commission Act of 2007 (Pub. L. 110-53, 121 Stat. 266, Aug. 3, 2007)
requires the development of a system to screen 100 percent of the cargo
transported on a passenger aircraft operating within the United States
by August 2010 and to screen 50 percent of all air cargo by February
2009. This rule amends several parts of title 49 of the Code of Federal
Regulations (CFR), as described in prior sections of this preamble. The
rule involves several information collections already approved by OMB.
This final rule includes the following information collections,
which were included in the IFR:
First, an entity that seeks to become a CCSF under 49 CFR part 1549
must submit an application to TSA.
Second, TSA must conduct STAs for key personnel of CCSFs. These key
personnel must submit personal data to TSA for the STAs. This STA
portion is a previously approved collection under OMB control number
1652-0040. This FR under OMB control number 1652-0053 expands the
population from which the information is collected.
Third, CCSFs (49 CFR 1549.7) must accept the TSA-approved security
program or submit amendments to the TSA-approved security program.
CCSFs must accept a standard security program provided by TSA or submit
a proposed modified security program to the designated TSA official for
approval initially and periodically thereafter as required.
Fourth, CCSP participants must maintain records of compliance with
the final rule and make them available for TSA inspection (see 49 CFR
1549.105 and 1522.129).
Finally, CCSFs must submit TSA-determined monthly cargo screening
metrics to TSA in accordance with their security programs.
Use of: TSA uses the applications of entities seeking to become
CCSFs to approve the entity as a CCSF. TSA collects personally
identifiable information from CCSFs about their key personnel in order
to conduct STAs on these individuals. STAs are required for individuals
who screen cargo, those who have unescorted access to screened cargo,
and other key individuals who support those functions. CCSF security
programs are necessary because they contain specific measures to deter
incidents that may jeopardize transportation security. CCSFs must
maintain records and provide TSA Inspectors and Principal Cargo
Security Analysts (PCSAs) access to their records, equipment, and
facilities necessary to conduct inspections and assessments. Finally,
TSA requires CCSFs to provide information on the amount of cargo
screened at an approved facility in order to evaluate the compliance
and performance of the CCSFs and to provide information needed for
congressional reporting and future rulemaking relating to air cargo
security.
Respondents (including number of): Over a three-year period, the
likely respondents to this proposed information requirement are the
2,902 entities that seek to become CCSFs under 49 CFR part 1549.
Frequency: CCSFs will submit an application for recertification
every three years. CCSFs will submit personally identifiable
information of their key personnel so that TSA can conduct STAs every
five years. The rule requires CCSFs to accept the TSA-approved security
program or submit
[[Page 51860]]
amendments to the TSA-approved security program once. TSA estimates
CCSFs will submit updates to their security program on average once
annually. The recordkeeping requirements must be continuous in
accordance with their security program. The requirement for CCSFs to
provide information on the amount of cargo screened and other screening
data at an approved facility will be a monthly collection.
Annual Burden Estimate: TSA estimates that the 967 entities who
seek to become CCSFs annually will spend approximately 2 hours each to
complete the applications for an annual burden of 1,934 hours. TSA
estimates 51,172 annual responses from CCSFs submitting applications to
TSA for processing STAs. TSA estimates an average of 15 minutes per
application for an annual burden of 12,793 hours. TSA has estimated
that a total of 1,778 CCSFs will adopt their security programs over the
three years for an average of 593 security programs annually. Each CCSF
will devote approximately 42 hours to their initial security program,
resulting in an annual burden of 24,906 hours. TSA has estimated that a
total 3,701 CCSFs will be required to maintain and update their
security programs over the three years for an average of 1,234 security
programs updated annually. Each CCSF will devote approximately four
hours annually, beginning in the second year, updating their security
programs for an annual hour burden of 4,936. TSA estimates all CCSFs
over the three years will be required to maintain records of compliance
with the final rule. This includes a time burden of approximately 5
minutes (0.083 hours) for every CCSF employee required to have an STA
as well as other records of compliance. This recordkeeping requirement
results in 51,172 annual record updates for an annual burden of
approximately 4,247 hours. TSA estimates that 1,826 CCSFs, the
estimated annual average in the program, will complete monthly cargo
reports at an estimated time of one hour per week for an annual burden
of approximately 94,952 hours.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average Average
Function annual annual Time per response Annual hours TSA form No. FR cite
respondents responses
--------------------------------------------------------------------------------------------------------------------------------------------------------
CCSF Applications Collected every 36 months after initial application.
--------------------------------------------------------------------------------------------------------------------------------------------------------
One Year............................. 967 967 2 hours................. 1,934 419E................... Sec. 1549.7
Three Years.......................... 2,902 2,902 2 hours................. 5,804
--------------------------------------------------------------------------------------------------------------------------------------------------------
STA Applications Collected every five years after initial application.
--------------------------------------------------------------------------------------------------------------------------------------------------------
One Year............................. 51,172 51,172 .25 hours............... 12,793 419F................... Sec. 1549.11
Three Years.......................... 153,516 153,516 .25 hours............... 38,379 ....................... Sec.
1549.103
--------------------------------------------------------------------------------------------------------------------------------------------------------
Security Programs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Creations One time collection.
--------------------------------------------------------------------------------------------------------------------------------------------------------
One Year............................. 593 593 42 hours................ 24,906 N/A.................... Sec. 1549.5
Three Years.......................... 1,778 1,778 42 hours................ 74,676
--------------------------------------------------------------------------------------------------------------------------------------------------------
Updates Once annually
--------------------------------------------------------------------------------------------------------------------------------------------------------
One Year............................. 1,234 1,234 4 hours................. 4,936 N/A.................... Sec. 1549.5
Three Years.......................... 3,701 3,701 4 hours................. 14,804
--------------------------------------------------------------------------------------------------------------------------------------------------------
Recordkeeping Continuous as needed.
--------------------------------------------------------------------------------------------------------------------------------------------------------
One Year............................. 51,172 51,172 .083 hours.............. 4,247 N/A.................... Sec.
1549.105
Three Years.......................... 153,516 153,516 .083 hours.............. 12,742
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cargo Reporting Monthly collection.
--------------------------------------------------------------------------------------------------------------------------------------------------------
One Year............................. 1,826 21,912 52 hours/yr............. 94,952 N/A.................... Sec.
1549.105
Three Years.......................... 5,479 65,748 52 hours/yr............. 284,908
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total for One Year............... 106,964 127,050 ........................ 143,768
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total for Three Years............ 320,892 381,161 ........................ 431,313
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: One year burdens may not multiply to three year burdens due to rounding.
As a protection provided by the Paperwork Reduction Act, as
amended, 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.
VII. Economic Impact Analyses
A. Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order (EO) 12866, Regulatory Planning and
Review, as supplemented by EO 13563, Improving Regulation and
Regulatory Review, directs each Federal agency to propose or adopt a
regulation only if the agency makes a reasoned determination that the
benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996) requires agencies to consider the economic impact of regulatory
changes on small entities when an agency is required to issue a notice
of proposed rulemaking. Third,
[[Page 51861]]
the Trade Agreements Act (19 U.S.C. 2531-2533) prohibits agencies from
setting standards that create unnecessary obstacles to the foreign
commerce of the United States. Fourth, the Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531-1538) requires agencies to prepare a written
assessment of the costs, benefits, and other effects of proposed or
final rules that include a Federal mandate likely to result in the
expenditure by State, local, or Tribal governments, in the aggregate,
or by the private sector, of $100 million or more annually (adjusted
for inflation).
TSA has prepared a Regulatory Evaluation, with detailed analyses,
which is available to the public in this docket. With respect to these
analyses, TSA provides the following conclusions and summary
information:
This rule is considered an economically significant rule
within the definition of EO 12866, as supplemented by EO 13563, as
estimated annual costs or benefits exceed $100 million in any year. TSA
has included the mandatory OMB Circular A-4 Accounting Statement in the
Regulatory Evaluation and thus has not repeated it here.
Under the Regulatory Flexibility Act of 1980, TSA is not
required to perform a Regulatory Flexibility Analysis because we did
not publish a proposed rule.
The Regulatory Evaluation provides the required assessment
of the Trade Agreement Act of 1979.
The Regulatory Evaluation provides the required written
assessment of Unfunded Mandates. This final rule is not likely to
result in the expenditure by State, local, or Tribal governments, in
the aggregate, of $100 million or more annually (adjusted for
inflation). This rule, however, does impose an unfunded mandate of
greater than $100 million or more annually (adjusted for inflation) on
the private sector. The separate analysis of the costs and benefits of
the rule in the Regulatory Evaluation, found in the public docket,
satisfies the analysis requirements of the Unfunded Mandates Reform
Act.
B. Executive Order 12866 and Executive Order 13563 Assessments
The following summary highlights the costs and benefits of the
rule. The following table presents the annualized, monetized costs of
the rule, discounted at both seven and three percent, along with a
discussion of the qualitative benefits, which have not changed from the
IFR to this final rule. This information is also found in the OMB
Circular A-4 in the Regulatory Evaluation Summary of the regulatory
evaluation.
----------------------------------------------------------------------------------------------------------------
Estimates Units
----------------------------------------------------------------
Category Discount
Primary Low High Year dollar rate
----------------------------------------------------------------------------------------------------------------
Costs
----------------------------------------------------------------------------------------------------------------
Annualized..................................... $178.1 $146.1 $210.9 2009 7%
Monetized ($millions/year)..................... $180.1 $147.7 $213.1 2009 3%
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
Qualitative.................................... Increased protection of passengers and cargo from acts of
terrorism. Prevent the introduction of unauthorized persons,
explosives, incendiaries, and other destructive substances or
items into the air cargo supply chain. Protect citizens on the
ground, in buildings, and elsewhere in our society from acts of
terrorism involving the use of aircraft.
----------------------------------------------------------------------------------------------------------------
Costs
TSA issued an IFR implementing the CCSP on September 16, 2009 (74
FR 47672). This final rule makes only two changes to the program TSA
established in the IFR--the elimination of the requirement for aircraft
operators to be certified as a CCSF in order to screen cargo off-
airport and the elimination of TSA-approved validation firms (TAVFs) in
favor of TSA assessments because of the reduction in the expected
number of CCSF participants. In response to public comments and changes
in the expected CCSF population, TSA has adjusted the estimated costs
for the CCSP. The effect of eliminating the TAVF requirement will be to
lower the cost of the rulemaking by $65.9 million, discounted at 7
percent, over the 10-year period of the rulemaking. However, TSA is
unable to quantify any potential impacts on cargo volumes or shipping/
screening prices that may stem from changes in requirements which
removed the TAVFs. The TAVF concept was never implemented by TSA,
consequently there is no data that can be used as a baseline. The
Regulatory Evaluation accompanying this rule contains a further
qualitative discussion of these potential impacts.
The Regulatory Evaluation accompanying this rule summarizes the
revised cost estimates of the CCSP, which would be borne by four
relevant parties: aircraft operators (including, in this context, both
U.S. aircraft operators and foreign air carriers), CCSFs, non-CCSF
entities that receive screened cargo from CCSFs, and TSA.
Total
In summary, over the 10-year period of the analysis, TSA estimates
the aggregate costs of the CCSP to total approximately $1.5 billion
discounted at three percent and approximately $1.3 billion discounted
at seven percent. The Regulatory Evaluation, available in the public
docket, provides detailed estimates of these costs.
TSA estimates costs of this Regulatory Evaluation using two
methods: a top-down approach and a bottom-up approach. TSA's bottom-up
cost approach is based primarily on the projected participation of
IACs, ICSFs, and shippers in the CCSP. TSA uses these estimates in
conjunction with estimated costs of program compliance to estimate a
total cost for the rule from the bottom up.
TSA expects IACs and ICSFs choosing to become CCSFs to charge a
service fee for screening cargo. TSA believes that this fee, similar to
that charged by United Kingdom Known Consignors, would include all
costs and profit associated with screening of cargo and is therefore a
useful proxy in determining the cost to firms of screening cargo. TSA's
top-down method estimates the cost of CCSP using a range of fees seen
in the United
[[Page 51862]]
Kingdom Known Consignor program as the basis for costs incurred by
industry.
TSA considers the top-down cost approach more accurate considering
the level of uncertainty in TSA's estimate of the number of firms
choosing to become CCSFs. Also, the top-down approach is more likely to
reflect the efficiencies captured by allowing the market to allocate
screening measures. Thus, the top-down cost estimate is TSA's preferred
approach.
Both the bottom-up and the top-down cost estimates decreased from
the IFR to the final rule due to changes in assumptions, based on
having better data available for the final rule. For example, TSA used
Bureau of Transportation Statistics data in the IFR to estimate cargo
volume, but in the final rule, actual cargo volume data were available
from the air carriers. The only change in rule requirements that
impacted the cost estimates was the elimination of the TSA-approved
validation firms. In the top-down approach, only the TSA costs were
reduced by the elimination of TAVFs. In the bottom-up approach, costs
were reduced for CCSFs, TSA, and the potential TAVFs.
The following table presents the annual costs of the rule over the
10-year analysis period. The total is broken out by costs to TSA, cost
to industry (using the preferred approach), and the estimated delay
costs due to screening. The TSA total represents the estimated costs
TSA will incur to implement the CCSP and enforce compliance.
The industry cost is estimated using a range of fees observed in
the United Kingdom Known Consignor Program as the basis, and accounts
for the 57 percent of cargo shipped on passenger planes expected to be
screened at CCSFs as well as the additional 28 percent that aircraft
operators are expected to screen. The remaining 15 percent is assumed
to have been screened by the air carriers prior to the rulemaking. The
delay cost assumes the 43 percent of cargo (15 percent screened prior
to the CCSP and an additional 28 percent under the CCSP) expected to be
screened by the aircraft operators will be the only cargo subject to
delay. The high and low estimates represent variance around TSA's
primary estimate to allow for uncertainties with the inputs used to
estimate the total cost of the rule.
Table 1--10-Year Total Cost Summary of CCSP
[$ millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Discounted (3 Discounted (7
Year TSA cost Industry cost Delay cost Total cost percent) percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1....................................................... $32.7 $109.7 $30.1 $172.5 $167.5 $161.2
2....................................................... 5.4 115.0 31.6 152.0 143.3 132.7
3....................................................... 4.9 120.5 33.1 158.5 145.1 129.4
4....................................................... 4.1 126.3 34.7 165.1 146.7 126.0
5....................................................... 4.1 132.3 36.4 172.9 149.1 123.3
6....................................................... 4.5 138.7 38.2 181.4 151.9 120.9
7....................................................... 4.3 145.3 40.1 189.7 154.3 118.2
8....................................................... 4.3 152.3 42.0 198.6 156.8 115.6
9....................................................... 4.6 159.6 44.0 208.2 159.6 113.3
10...................................................... 4.4 167.3 46.2 217.9 162.1 110.8
-----------------------------------------------------------------------------------------------
Total............................................... 73.4 1,367.0 376.5 1,816.8 1,536.3 1,251.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Low..................................................... 55.0 1,139.2 296.5 1,490.7 1,260.2 1,026.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
High.................................................... 91.7 1,594.8 463.3 2,149.9 1,818.2 1,481.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Changes in Cost Estimates From Interim Final Rule
The CCSP final rule cost estimates differ from the IFR in large
part to reflect actual data gathered since the implementation of the
program. TSA uses the current state of the program, technology
purchased, screening distribution, and numerous other sources of
information to better estimate population projections and program
costs. The tables below identify these cost differences for the CCSP
top-down approach (which is TSA's preferred approach), CCSP bottom-up
approach, and the 100 percent Air Carrier Alternative at the
undiscounted, three percent, and seven percent discounted rate.
Table 2--Changes to Cost Estimates From IFR
[$ millions]
----------------------------------------------------------------------------------------------------------------
Undiscounted 10-year total costs
Estimate -----------------------------------------------
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
CCSP Top-down................................................... $2,836.4 $1,816.8 ($1,019.6)
CCSP Bottom-up.................................................. 5,199.5 2,300.0 (2,899.5)
Air Carrier Alternative......................................... 11,141.6 3,513.7 (7,627.9)
----------------------------------------------------------------------------------------------------------------
[[Page 51863]]
Table 2a--Changes to Cost Estimates From IFR
[$ millions]
----------------------------------------------------------------------------------------------------------------
3% Discount 10-year total costs
Estimate -----------------------------------------------
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
CCSP Top-down................................................... $2,394.0 $1,536.3 ($857.7)
CCSP Bottom-up.................................................. 4,403.9 1,946.1 (2,457.7)
Air Carrier Alternative......................................... 9,427.0 2,966.4 (6,460.6)
----------------------------------------------------------------------------------------------------------------
Table 2b--Changes to Cost Estimates From IFR
[$ millions]
----------------------------------------------------------------------------------------------------------------
7% Discount 10-year total costs
Estimate -----------------------------------------------
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
CCSP Top-down................................................... $1,945.0 $1,251.2 ($693.8)
CCSP Bottom-up.................................................. 3,597.0 1,585.4 (2,011.5)
Air Carrier Alternative......................................... 7,683.0 2,410.4 (5,272.6)
----------------------------------------------------------------------------------------------------------------
The tables below identify the major driving forces behind the
changes for the CCSP Bottom-up approach. The Regulatory Evaluation
explains in detail the reasons for the changes.
Table 3--Changes to Air Carrier and Non-CCSF IAC Costs
[$ millions]
----------------------------------------------------------------------------------------------------------------
10-year total costs
Cost component ------------------------------------------------ Major cost driving changes
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
Personnel.......................... $709.9 $564.1 ($145.8) TSA increased the
Equipment.......................... 57.3 34.8 (22.5) percentage of cargo
Screener Training.................. 6.4 3.7 (2.7) screened by air carriers
and updated tendering
percentage configuration
assumptions based on
current screening data.
Chain of Custody Training.......... 75.5 55.2 (20.3) TSA updated with a more
industry-specific wage.
----------------------------------------------------------------------------------------------------------------
Undiscounted Total............. 849.1 657.8 (191.3) ...........................
------------------------------------------------------------------------------------
3% Discounted Total............ 717.7 556.3 (161.4) ...........................
------------------------------------------------------------------------------------
7% Discounted Total............ 584.3 453.0 (131.2) ...........................
----------------------------------------------------------------------------------------------------------------
Table 4--Changes to TSA Approved Validation Firm (TAVF) Costs
[$ millions]
----------------------------------------------------------------------------------------------------------------
10-year total costs
Cost component ------------------------------------------------ Major cost driving changes
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
Enrollment......................... $0.002 $0.00 ($0.002) TSA will perform
Validator Training................. 14.10 0.00 (14.10) assessments on CCSFs and
STA Cost........................... 0.10 0.00 (0.10) has eliminated the need
for TAVFs.
----------------------------------------------------------------------------------------------------------------
Undiscounted Total............. 14.20 0.00 (14.20) ...........................
------------------------------------------------------------------------------------
3% Discounted Total............ 14.0 0.0 (14.0) ...........................
------------------------------------------------------------------------------------
7% Discounted Total............ 11.7 0.0 (11.7)
----------------------------------------------------------------------------------------------------------------
[[Page 51864]]
Table 5--Changes to CCSF Costs
[$ millions]
----------------------------------------------------------------------------------------------------------------
10-year total costs
Cost component ------------------------------------------------ Major cost driving changes
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
Validations........................ $75.4 $0.0 ($75.4) TSA will now perform
assessments at no charge
to CCSFs and eliminated
the need for TAVFs.
Facility Security.................. 172.3 19.1 (153.2) TSA updated the CCSF
population projection
based on current
participation and the
types of entities expected
to enroll in the future.
Training........................... 902.2 107.0 (795.2)
Security Coordinators.............. 593.8 53.2 (540.6)
Enrollment......................... 119.0 17.0 (102.0) TSA updated CCSF population
projection. Also, based on
current program included
new cost for a two-hour
application per CCSF.
Screening Equipment................ 914.8 309.6 (605.2) TSA updated CCSF population
projection and equipment
expected to be purchased
based on technology
purchased by currently
enrolled CCSFs. Also
revised purchase prices to
reflect industry
experience.
Chain of Custody................... 58.8 24.5 (34.3) TSA updated assumptions
based on current practice.
STA Cost........................... 31.0 20.7 (10.3) TSA updated CCSF population
projection and STA fee. In
addition, estimated firms
will pay STA fee in years
3-10. Previously, TSA was
assumed responsible for
the duration of the
analysis.
Personnel.......................... 785.5 641.4 (144.1) TSA updated tendering
percentage assumptions
based on current screening
data.
----------------------------------------------------------------------------------------------------------------
Undiscounted Total............. 3,652.8 1,192.4 (2,460.4) ...........................
------------------------------------------------------------------------------------
3% Discounted Total............ 3,094.8 1,006.4 (2,088.4) ...........................
------------------------------------------------------------------------------------
7% Discounted Total............ 2,529.1 816.6 (1,712.6)
----------------------------------------------------------------------------------------------------------------
Table 6--Changes to TSA Costs
[$ millions]
----------------------------------------------------------------------------------------------------------------
10-year total costs
Cost component ------------------------------------------------- Major cost driving changes
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
Inspections........................ $200.2 $9.5 ($190.7) TSA updated the CCSF
population projections
based on current
participation and the
types of entities
expected to enroll in the
future.
Training........................... 10.0 5.1 (4.9) TSA updated with more
industry-specific wages.
Security Plan Review............... 30.0 4.3 (25.7) TSA updated CCSF
population projection.
Assessments........................ 0.0 9.6 9.6 TSA will be performing
assessments and
eliminated the need for
TAVFs.
Assessment Review.................. 42.3 1.0 (41.3) TSA updated CCSF
population projection.
Validation Firm Enrollment......... 0.3 0.0 (0.3) TSA will be performing
assessments and has
eliminated the need for
TAVFs.
ACDMS.............................. 9.0 14.0 5.0 TSA updated costs based on
current ACDMS
development.
STAs............................... 71.4 1.5 (69.9) TSA updated CCSF
population projections.
TSA estimates industry
will pay an STA fee in
years 3-10. Previously,
TSA was assumed
responsible for the
duration of the analysis.
Equipment for Screening Technology 23.6 28.4 4.8 TSA updated cost to
Pilot (STP). reflect actual cost
incurred for pilot.
----------------------------------------------------------------------------------------------------------------
Undiscounted Total............. 386.8 73.4 (313.4)
-------------------------------------------------------------------------------------
3% Discounted Total............ 326.8 66.0 (260.8)
-------------------------------------------------------------------------------------
[[Page 51865]]
7% Discounted Total............ 268.7 58.3 (210.4)
----------------------------------------------------------------------------------------------------------------
Table 7--Changes to CCSP Delay Cost
[$millions]
----------------------------------------------------------------------------------------------------------------
10-year total costs
Cost component ------------------------------------------------ Major cost driving changes
IFR Final rule Difference
----------------------------------------------------------------------------------------------------------------
Undiscounted Total Delay Cost.. $297.1 $376.5 $79.4 TSA updated the percentage
of cargo screened by CCSFs
and tendering percentage
configuration assumptions
based on current screening
data. In addition, TSA
corrected errors in the
delay model.
----------------------------------------------------------------------------------------------------------------
3% Discounted Total............ 250.3 317.4 67.2 ...........................
------------------------------------------------------------------------------------
7% Discounted Total............ 202.9 257.5 54.6 ...........................
----------------------------------------------------------------------------------------------------------------
Benefits
The CCSP allows for more standardized governance in cargo screening
and provides fourfold benefits in terms of increased security of
commercial passenger aviation. First, by screening 100 percent of cargo
shipped on passenger aircraft, the passenger airline industry will have
more protection against an act of terrorism or other malicious
behavior. Second, allowing the screening process to occur throughout
the supply chain via the CCSP reduces potential bottlenecks and delays
at the airports. Third, the CCSP allows the market to identify the most
efficient venue for screening along the supply chain thereby permitting
any entity in the supply chain to apply for TSA certification to screen
the cargo and apply chain-of-custody procedures. Finally, the CCSP
enables members to screen valuable cargo earlier in the supply chain
and avoid any potentially invasive screening that may occur at the
aircraft operator level.
The main benefit of this regulation, decreased terrorism risk,
cannot be quantified given current data limitations. When it is not
possible to quantify or monetize the important incremental benefits of
a regulation, OMB recommends conducting a threshold, or ``break-even''
analysis. According to OMB, such an analysis answers the question,
``How small could the value of the non-quantified benefits be (or how
large would the value of the non-quantified costs need to be) before
the rule would yield zero net benefits?'' \20\ Consequently, to better
inform the comparison of the costs of implementing the rule with the
benefits to homeland security of the CCSP, TSA performed a series of
break-even analyses. In these break-even analyses, TSA compared the
annualized costs of the rule's requirements to the expected benefits of
preventing certain potential terrorist attacks. To evaluate the
potential range of attacks, TSA considers four relevant attack
scenarios.
---------------------------------------------------------------------------
\20\ U.S. Office of Management and Budget, Circular A-4,
September 17, 2003, p.2.
---------------------------------------------------------------------------
For example, TSA considered the direct costs of a scenario where an
explosive device placed in cargo shipped on a passenger plane destroys
a standard narrow body aircraft (from the fleets used by major U.S.
aircraft operators) during flight. This incident is assumed to result
in the loss of the lives of all passengers and crewmembers on board,
along with the total destruction of the aircraft. Based on data
reported in the FAA Critical Values Guidance,\21\ TSA used an average
capacity of 142 passengers with a load factor of 80 percent \22\ and an
average crew size of five to estimate 119 (142 passengers x 80 percent
+ 5 crewmembers) total people to be on board. TSA estimates the value
of these statistical lives is approximately $714.0 million, based on
the Department of Transportation's Value of a Statistical Life (VSL)
estimation of $6.0 million per person.\23\ The VSL represents an
individuals' willingness to pay to avoid a fatality, based on economic
studies of the value individuals place on small changes in risk and is
not meant to represent the actual value of a specific life. TSA notes
the VSL used in the final rule has increased to $6.0 million from the
$5.8 million used in the IFR. This increase was done to remain in
alignment with the VSL used by DOT, which was raised from $5.8 million
to $6.0 million.\24\ A further discussion of VSL is included in the
Break Even Analysis section of the Regulatory Evaluation.
---------------------------------------------------------------------------
\21\ ``Economic Values for FAA Investment and Regulatory
Decisions, a Guide'' (updated Oct 2007).
\22\ FAA Aerospace Forecast 2008-2025 (load factor across all
aircraft). The FAA Aerospace Forecast is updated annually and
provides the best available data on load factors.
\23\ U.S. Department of Transportation memorandum, ``Treatment
of the Economic Value of a Statistical Life in Departmental
Analyses--2009 Annual Revision.'' Office of the Secretary of
Transportation, March 18, 2009. http://gov.rosenet.org/uploads/254/treatment_of_a_statistical_life_dot.pdf.
\24\ Ibid.
---------------------------------------------------------------------------
The estimated aircraft cost is $18.5 million. The aircraft
replacement costs are from an FAA guide on economic values in
regulatory analysis.\25\ The values in the FAA guidance are in 2003
dollars. In the IFR, TSA inflated these 2003 prices to 2006 price
levels using the BLS Producer Price Index (PPI) Commodity Data for
Civilian Aircraft. The final rule inflated them to 2009 dollars using
the PPI Industry Data for Aircraft Manufacturing of Civilian
Aircraft.\26\ The eight percent increase from the IFR shows the PPI
increase for this industry from 2006 to 2009, and is
[[Page 51866]]
consistent across all aircraft types used in the Regulatory Evaluation.
---------------------------------------------------------------------------
\25\ http://www.faa.gov/regulations_policies/policy_guidance/benefit_cost/media/050404%20Critical%20Values%20Dec%2031%20Report%2007Jan05.pdf.
\26\ http://bls.gov/ppi/.
---------------------------------------------------------------------------
Assuming that the aircraft is destroyed and minimal impact damage
is done, TSA estimates the total direct monetary consequence of the
attack, the value of the lives on board and the aircraft, at $732.5
million. Dividing the $732.5 million in estimated direct consequences,
by the $178.1 (the annualized cost of the rule discounted at seven
percent), shows that in order for the rule to break even, it will need
to reduce the existing or baseline frequency of terror attack by one
attack every 4.1 years ($732.5/$178.1 = 4.1).
The estimate of the economic impacts of the attack scenarios used
in these break-even analyses is limited to direct costs only (value of
casualties and loss of aircraft). This analysis does not consider any
indirect or macroeconomic consequences these terrorist attacks might
cause. Consequently, the economic impacts of the terrorist attacks
estimated for this series of break-even analyses is a lower-bound
estimate of the economic impact of these attacks. A full discussion of
the break-even analysis including an analysis of each of the four
scenarios analyzed is presented in Chapter 4 of the Regulatory
Evaluation accompanying this rule.
C. Regulatory Flexibility Act Assessment
Section 604(a) of the Regulatory Flexibility Act (RFA) requires
that, when an agency promulgates a final rule ``after being required *
* * to publish a general notice of proposed rulemaking,'' the agency
must determine whether a proposed or final rule will have a significant
economic impact on a substantial number of small entities and, if so,
must prepare a regulatory flexibility analysis as described in the Act.
Because TSA did not issue a proposed rule prior to this final rule, we
are not required to perform a Regulatory Flexibility Analysis. Although
a Regulatory Flexibility Analysis was not prepared, TSA analyzed the
impact of costs of the program on all CCSFs currently enrolled. This
analysis is presented in Appendix A of the Regulatory Evaluation
accompanying this rule.
D. International Trade Impact Assessment
The Trade Agreements Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this final rule and has determined that the same measures
must apply to both U.S. aircraft operators and foreign air carriers
loading cargo on passenger aircraft.
E. Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among
other things, to curb the practice of imposing unfunded Federal
mandates on State, local, and Tribal governments. Title II of UMRA
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 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 deemed to be a ``significant regulatory action''. This final rule
does not exceed this threshold with respect to State, local, and Tribal
governments, because it does not require them to take any action. The
impact on the private sector, however, does exceed the threshold,
resulting in an unfunded mandate on the private sector; the regulatory
evaluation documents the costs and alternatives associated with this
regulatory action.
VIII. Executive Order 13132, Federalism
TSA has analyzed this final rule under the principles and criteria
of Executive Order 13132, Federalism. We determined that this action
will not have a substantial direct effect on the States, or the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have federalism implications.
IX. Environmental Analysis
We have analyzed this final rule under DHS Management Directive
5100.1 ``Environmental Planning Program'' (see also 71 FR 16790, Apr.
4, 2006), which guides DHS in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f). We have concluded
that this rule is part of a category of actions described in items A3,
A4, A7, B3, H1 and H2 of Table 1 in Appendix A of the Management
Directive. This final rule would not have individually or cumulatively
a significant effect on the human environment and, therefore, neither
an environmental assessment nor an environmental impact statement is
necessary.
X. Energy Impact Analysis
TSA has assessed the energy impact of this rule in accordance with
the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as
amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects
49 CFR Part 1515
Appeals, Commercial driver's license, Criminal history background
checks, Explosives, Facilities, Hazardous materials, Incorporation by
reference, Maritime security, Motor carriers, Motor vehicle carriers,
Ports, Seamen, Security measures, Security threat assessment, Vessels,
Waivers.
49 CFR Part 1520
Air transportation, Law enforcement officers, Maritime carriers,
Reporting and recordkeeping requirements, Security measures.
49 CFR Part 1522
Accounting, Aircraft operators, Aviation safety, Reporting and
recordkeeping requirements, Security measures.
49 CFR Part 1540
Air carriers, Aircraft, Airports, Civil aviation security, Law
enforcement officers, Reporting and recordkeeping requirements,
Security measures, Screening.
49 CFR Part 1544
Air carriers, Aircraft, Aviation safety, Freight forwarders,
Incorporation by reference, Reporting and recordkeeping requirements,
Security measures.
49 CFR Part 1546
Aircraft, Aviation safety, foreign air carriers, Incorporation by
reference, Reporting and recordkeeping requirements, Security measures.
49 CFR Part 1548
Air transportation, Aviation safety, Reporting and recordkeeping
requirements, Security measures.
49 CFR Part 1549
Air transportation, Reporting and recordkeeping requirements,
Security measures.
The Amendments
Under 49 U.S.C. 114(l) and as discussed in the preamble, the
Transportation Security Administration
[[Page 51867]]
amends Chapter XII, of Title 49, Code of Federal Regulations as
follows:
SUBCHAPTER A--ADMINISTRATIVE AND PROCEDURAL RULES
PART 1515--APPEAL AND WAIVER PROCEDURES FOR SECURITY THREAT
ASSESSMENTS FOR INDIVIDUALS
0
1. The authority citation for part 1515 continues to read as follows:
Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and
46105; 18 U.S.C. 842, 845; 6 U.S.C. 469.
0
2. Revise Sec. 1515.1(a)(2) to read as follows:
Sec. 1515.1 Scope.
(a) * * *
(2) 49 CFR part 1540, subpart C, which includes individuals engaged
in air cargo operations who work for certain aircraft operators,
foreign air carriers, indirect air carriers (IACs), or certified cargo
screening facilities.
* * * * *
0
3. In Sec. 1515.9 remove paragraph (c)(1)(v), and revise paragraphs
(a)(3) and (f)(3) to read as follows:
Sec. 1515.9 Appeal of security threat assessment based on other
analyses.
(a) * * *
(3) TSA had determined that an individual engaged in air cargo
operations who works for certain aircraft operators, foreign air
carriers, IACs, or certified cargo screening facilities, poses a
security threat as provided in 49 CFR 1549.109.
* * * * *
(f) * * *
(3) If TSA withdraws a Determination of No Security Threat for an
individual engaged in air cargo operations who works for certain
aircraft operators, foreign air carriers, IACs, or certified cargo
screening facilities.
0
4. Revise Sec. 1515.11(a)(3) to read as follows:
Sec. 1515.11 Review by administrative law judge and TSA Final
Decision Maker.
(a) * * *
(3) An individual engaged in air cargo operations who works for
certain aircraft operators, foreign air carriers, IACs, or certified
cargo screening facilities who has been issued a Final Determination of
Threat Assessment after an appeal as described in 49 CFR 1515.9.
* * * * *
SUBCHAPTER B--SECURITY RULES FOR ALL MODES OF TRANSPORTATION
PART 1520--PROTECTION OF SENSITIVE SECURITY INFORMATION
0
5. The authority citation for part 1520 continues to read as follows:
Authority: 46 U.S.C. 70102-70106, 70117; 49 U.S.C. 114, 40113,
44901-44907, 44913-44914, 44916-44918, 44935-44936, 44942, 46105.
0
6. Revise Sec. 1520.7(b) to read as follows:
Sec. 1520.7 Covered persons.
* * * * *
(b) Each indirect air carrier (IAC), as described in 49 CFR part
1548; and each certified cargo screening facility and its personnel, as
described in 49 CFR part 1549.
* * * * *
PART 1522--[REMOVED]
0
7. Remove part 1522.
SUBCHAPTER C--CIVIL AVIATION AUTHORITY
PART 1540--CIVIL AVIATION AUTHORITY: GENERAL RULES
0
8. The authority citation for part 1540 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-
44914, 44916-44918, 44935-44936, 44942, 46105.
Subpart C--Security Threat Assessments
0
9. In Sec. 1540.201 remove paragraphs (a)(10), (11), and (12), and
revise paragraph (a) introductory text and paragraph (b) definition of
``Operator'' to read as follows:
Sec. 1540.201 Applicability and terms used in this subpart.
(a) This subpart includes the procedures that certain aircraft
operators, foreign air carriers, indirect air carriers, and certified
cargo screening facilities must use to have security threat assessments
performed on certain individuals pursuant to 49 CFR 1544.228, 1546.213,
1548.7, 1548.15, 1548.16 and 1549.111. This subpart applies to the
following:
* * * * *
(b) * * *
Operator means an aircraft operator, foreign air carrier, and
indirect air carrier listed in paragraphs (a)(1) through (a)(3) of this
section, and a certified cargo screening facility described in
paragraph (a)(6) of this section.
* * * * *
Sec. 1540.203 [Amended]
0
10. In Sec. 1540.203 remove paragraph (a)(1) and redesignate
paragraphs (a)(2) through (a)(6) as paragraphs (a)(1) through (a)(5).
0
11. Revise Sec. 1540.209 introductory text and paragraph (c)(1) to
read as follows:
Sec. 1540.209 Fees for security threat assessment.
This section describes the payment process for completion of the
security threat assessments required under this subpart.
* * * * *
(c) * * *
(1) The fees required under this subpart must be remitted to TSA in
a form and manner acceptable to TSA each time the applicant or an
aircraft operator, foreign air carrier, indirect air carrier, or
certified cargo screening facility submits the information required
under Sec. 1540.203 or Sec. 1540.207 to TSA.
* * * * *
PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL
OPERATORS
0
12. The authority citation for part 1544 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.
Subpart C--Operations
0
13. Revise Sec. 1544.105(a) introductory text to read as follows:
Sec. 1544.105 Approval and amendments.
(a) Initial approval of security program. Unless otherwise
authorized by TSA, each aircraft operator required to have a security
program under this part must submit its proposed security program to
the designated official for approval at least 90 days before the
intended date of operations. The proposed security program must meet
the requirements applicable to its operation as described in Sec.
1544.101. Such requests will be processed as follows:
* * * * *
0
14. Revise Sec. 1544.205(g)(3) to read as follows:
Sec. 1544.205 Acceptance and screening of cargo.
* * * * *
(g) * * *
(3) Limitation on who may conduct screening. Screening must be
conducted by the foreign air carrier on an airport, by another aircraft
operator or foreign
[[Page 51868]]
air carrier operating under a security program under this chapter with
a comparable cargo security program on an airport with a complete
program under 49 CFR part 1542, by a certified cargo screening facility
in accordance with 49 CFR part 1549, or by TSA.
* * * * *
PART 1546--FOREIGN AIR CARRIER SECURITY
0
15. The authority citation for part 1546 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44914, 44916-44917, 44935-44936, 44942, 46105.
Subpart C--Operations
0
16. Revise Sec. 1546.205(g)(3) to read as follows:
Sec. 1546.205 Acceptance and screening of cargo.
* * * * *
(g) * * *
(3) Limitation on who may conduct screening. Screening must be
conducted by the foreign air carrier on an airport, by another aircraft
operator or foreign air carrier operating under a security program
under this chapter with a comparable cargo security program on an
airport with a complete program under 49 CFR part 1542, by a certified
cargo screening facility in accordance with 49 CFR part 1549, or by
TSA.
* * * * *
PART 1548--INDIRECT AIR CARRIER SECURITY
0
17. The authority citation for part 1548 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44913-
44914, 44916-17, 44932, 44935-44936, 46105.
0
18. Revise Sec. 1548.15(a) to read as follows:
Sec. 1548.15 Access to cargo: Security threat assessments for
individuals having unescorted access to cargo.
(a) Before an indirect air carrier authorizes and before an
individual performs a function described in paragraph (b) of this
section--
(1) Each individual must successfully complete a security threat
assessment or comparable security threat assessment described in part
1540 subpart C of this chapter; and
(2) Each indirect air carrier must complete the requirements in
part 1540 subpart C.
* * * * *
PART 1549--CERTIFIED CARGO SCREENING PROGRAM
0
19. The authority citation for 1549 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44913-
44914, 44916-44917, 44932, 44935-44936, 46105.
Subpart A--General
0
20. In Sec. 1549.7 revise paragraphs (a)(2)(ii), (a)(3)(ii), (a)(5),
and (b)(2) to read as follows:
Sec. 1549.7 Approval, amendment, renewal of the security program and
certification of a certified cargo screening facility.
(a) * * *
(2) * * *
(ii) An applicant must successfully undergo an assessment by TSA.
(3) * * *
(ii) The applicant has successfully undergone an assessment by TSA;
(5) Commencement of operations. The certified cargo screening
facility may operate under a security program when it meets all TSA
requirements, including but not limited to an assessment by TSA,
successful completion of training, and Security Threat Assessments by
relevant personnel.
* * * * *
(b) * * *
(2) The certified cargo screening facility must demonstrate that it
has successfully undergone a revalidation of its operations by TSA
prior to the first day of the 36th anniversary month of initial
approval of its security program.
* * * * *
Subpart B--Operations
0
21. Revise Sec. 1549.105(a)(2) to read as follows:
Sec. 1549.105 Recordkeeping.
(a) * * *
(2) Copies of all documents related to applications for, or
renewals of, TSA certification to operate under part 1549.
* * * * *
Issued in Arlington, Virginia, on August 10, 2011.
John S. Pistole,
Administrator.
[FR Doc. 2011-20840 Filed 8-17-11; 8:45 am]
BILLING CODE 9110-05-P