[Federal Register Volume 86, Number 140 (Monday, July 26, 2021)]
[Notices]
[Pages 40072-40074]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-15902]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration


Exemption for Exclusive Area Agreements at Certain Airports

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice.

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SUMMARY: TSA is providing notice of temporary exemptions the agency is 
granting to three airport operators to permit them to enter into 
Exclusive Area Agreements (EAA) with Amazon Air, a subsidiary of 
Amazon.com Inc. The exemption applies to the following airport 
operators: Cincinnati/Northern Kentucky International Airport (CVG), 
Baltimore/Washington International Thurgood Marshall Airport (BWI), and 
Chicago Rockford International Airport (RFD).

DATES: These exemptions take effect on July 26, 2021 and remain in 
effect until modified or rescinded by TSA through a notice published in 
the Federal Register.

FOR FURTHER INFORMATION CONTACT: Eric Byczynski, Airport Security 
Programs, Aviation Division, Policy, Plans, and Engagement; email to: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Purpose

    TSA's regulations provide that airport operators may enter into 
EAAs only with aircraft operators or foreign air carriers, subject to 
TSA approval of an amendment to each airport operator's airport 
security program (ASP). See 49 CFR 1542.111. Amazon Air is not an 
aircraft operator or foreign air carrier, but conducts significant 
operations at three airports on behalf of aircraft operators.
    TSA has determined it is in the public interest to authorize these 
airport operators to enter into EAAs with Amazon Air because this 
action will create operational and economic efficiencies for the 
airport operators and Amazon Air, to the economic benefit of the public 
and without detriment to security. The exemptions permit these airports 
to leverage significant private sector technologies with respect to 
access control and monitoring systems that enhance security and 
minimize insider threat. The exemptions will also facilitate the rapid 
hiring of significant numbers of new personnel to support Amazon Air's 
expanded presence at these locations, aiding the economy in the 
surrounding areas. Finally, the exemptions will permit TSA to exercise 
direct regulatory oversight of Amazon Air concerning the security 
functions they will perform under the EAAs. All other provisions of 49 
CFR 1542.111 will apply to any EAA executed under these exemptions.

[[Page 40073]]

II. Background

A. Airport Security

    TSA administers a comprehensive regulatory program to govern the 
security of aviation, including standards for domestic airports, 
domestic aircraft operators, and foreign air carriers. The security 
requirements for domestic airports are codified at 49 CFR part 1542 and 
include minimum standards for access control procedures, identification 
(ID) media, passenger screening, criminal history records checks 
(CHRCs) of airport workers, law enforcement support, training, 
contingency plans, TSA inspection authority, and incident management. 
These regulations require airport operators to conduct specified 
security measures in the secured area,\1\ air operations area (AOA), 
and security identification display area (SIDA) of the airport. Part 
1542 requires airports to develop and follow TSA-approved ASPs \2\ that 
establish security procedures specific to each airport, and Security 
Directives, which apply to all airports.
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    \1\ 49 CFR 1540.5 for definitions of terms used throughout this 
notice.
    \2\ 49 CFR 1542.105(a).
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    TSA recognizes that, in certain circumstances, these security 
measures may be performed more effectively or efficiently by another 
TSA-regulated party, such as an aircraft operator or foreign air 
carrier, operating on the airport. Therefore, under 49 CFR 1542.111, 
TSA may approve an amendment to an airport's ASP that permits the 
airport operator to execute a legally binding EAA with an aircraft 
operator \3\ or foreign air carrier.\4\ Under the EAA, the aircraft 
operator or foreign air carrier assumes responsibility from the airport 
operator for specified ASP security measures in all or specified 
portions of the secured area, AOA, or SIDA.\5\ TSA requires the EAA to 
be in writing, and signed by the airport operator and the aircraft 
operator or foreign air carrier.\6\ TSA also prescribes in detail the 
required contents of the EAA, including a description of the measures 
that become the responsibility of the aircraft operator or foreign air 
carrier.\7\
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    \3\ 49 CFR part 1544.
    \4\ 49 CFR part 1546.
    \5\ 49 CFR 1542.111(a).
    \6\ 49 CFR 1542.111(b).
    \7\ 49 CFR 1542.111(b)(1)-(3).
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    EAAs are an established part of TSA's regulatory structure for 
airport operators, commonly used since 1978.\8\ Currently, there are 
more than 70 EAAs in place with aircraft operators and foreign air 
carriers at domestic airports. EAAs are typically used when an entire 
airport terminal is serviced exclusively by one aircraft operator. At 
locations with EAAs, TSA conducts standard compliance inspections, and 
may issue violations of the security standard set forth in the EAA 
against the aircraft operator or foreign air carrier that holds the 
EAA.
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    \8\ Published at 43 FR 60792 (Dec. 28, 1978).
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B. Entities Subject to the Exemptions

    These exemptions are limited to three airports-CVG, BWI, and RFD-
and the operations of Amazon Air at these locations.
    Amazon.com, Inc. is an American multinational technology company 
based in Seattle, Washington engaged in e-commerce, cloud computing, 
digital streaming, artificial intelligence, and cargo shipping. As of 
Spring 2021, Amazon reports that, less than 20 percent of Amazon's 
cargo is shipped by air. Due in part, however, to the COVID-19 public 
health crisis and impact on the economy, cargo shipment has increased 
dramatically, with a corresponding relative increase in the total 
volume of air cargo.
    Amazon's subsidiary, Amazon Air, maintains operations at various 
domestic and international airports. Amazon Air owns air cargo 
aircraft, but does not operate the aircraft itself and is not an 
aircraft operator for purposes of TSA's regulations. Amazon Air leases 
the aircraft to certain aircraft operators holding TSA full all-cargo 
security programs.\9\ Amazon Air then acts as an authorized 
representative for these full all-cargo aircraft operators \10\ at 
certain airports, including the three covered by these Exemptions.
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    \9\ See 49 CFR 1544.101(h) for scope of a full all-cargo 
security program.
    \10\ For purposes of this exemption, applicable full all-cargo 
aircraft operators include Atlas Air, Air Transport International, 
ABX, Inc., and Sun Country Airlines.
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    As an authorized representative \11\ at these locations, Amazon Air 
performs security functions under TSA's Full All-Cargo Aircraft 
Operator Standard Security Program on behalf of these aircraft 
operators, including the responsibility for preventing access to both 
aircraft and the cargo bound for those aircraft, and providing the 
Ground Security Coordinator, the individual at the facility responsible 
for coordinating these security responsibilities. Amazon Air has also 
assumed security responsibility for performing cargo acceptance and 
chain of custody; cargo screening, buildup, and consolidation; 
recordkeeping; cargo training; aircraft searches; screening ``jump 
seaters'' \12\ and their property; incident reporting; comparing jump 
seaters and individuals who have access to aircraft and cargo against 
watchlists; and participation in table top exercises.
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    \11\ An ``authorized representative'' is a person who performs 
TSA-required security measures as an agent of a TSA-regulated party. 
Although the authorized representative may perform the measures, the 
TSA-regulated party remains responsible for completion, and TSA 
holds the TSA-regulated party primarily accountable through 
enforcement action of any violations. TSA may also hold the 
authorized representative accountable if it causes the regulated 
party's violation. See 49 CFR 1540.105.
    \12\ The term ``jump seater'' refers to an off duty commercial 
pilot who is permitted to travel by using the jumpseat in the 
cockpit of a commercial aircraft operator.
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    Based on logistics and Amazon Air's current transportation network, 
these airports have become high capacity locations. As noted above, 
these increases are due, in part, to the COVID pandemic, the public's 
heightened reliance on online shopping for basic goods, and the 
Nation's needs to move personal protective equipment and related 
products quickly. Amazon Air estimates that these trends will not 
significantly diminish when the public health crisis ends.
    To address the current and anticipated demand, Amazon Air is 
increasing use of its own employees for company services and 
operations, rather than contracting out for services. Amazon Air 
already has employees in place at the three locations within the scope 
of this exemption and has represented to TSA that it intends to hire 
significantly more employees over the next 12 to 18 months.
    Hiring surges can occur at all airports throughout the year due to 
seasonal changes or construction. Most airports can plan ahead for 
these surges to ensure sufficient staffing in the airport badging 
offices to begin the vetting process and issue ID media to new 
employees. However, when a new or existing employer has a significant, 
sudden increase in employees, all airport vendors can be adversely 
affected by the strain this places on the airport badging system. It 
takes significant time to collect the biometric and biographic 
information needed to initiate CHRCs and security threat assessments 
(STA), adjudicate CHRCs, and issue the ID media.
    Amazon Air has represented to TSA that it has the capability and 
capacity to assume certain security responsibilities under the ASPs at 
these airports. These security responsibilities include physical 
control of access points at the locations; adjudicating CHRCs for 
disqualifying offenses and submitting STAs for its employees; issuing 
ID

[[Page 40074]]

media; and conducting ID media accountability audits.
    TSA has determined that Amazon Air possesses the latest, 
sophisticated access control and monitoring systems that enhance 
security by significantly restricting access to cargo and aircraft. 
Amazon Air is in the process of installing these systems at access 
points at these locations. As a subsidiary of a profitable, private 
sector leader in technology, Amazon Air benefits from ample resources 
to purchase advanced equipment as needed, without regard to local 
government budget restrictions that many airports face. This factor 
provides a level of assurance that the security capability will remain 
consistent and substantial. Amazon Air's independent economic stability 
also provides a level of assurance that it will be able to quickly 
obtain any necessary expertise it may need to carry out all of the EAA 
functions going forward.

III. Authority and Determination

    TSA may grant an exemption from a regulation if TSA determines that 
the exemption is in the public interest.\13\ TSA finds this exemption 
to be in the public interest for several reasons. First, TSA has 
evaluated Amazon Air's security apparatus with respect to access 
control and monitoring, vetting and ID media issuance, and cargo 
management and movement, and determined it to be modern, strong, and 
resilient. Second, Amazon Air's significant personnel expansion at 
these locations may strain the resources of airport operator and 
aircraft operator badging offices, adversely affecting other airport 
vendors, and limiting new hire capability. Amazon Air's ability under 
an EAA to initiate the employee vetting functions that the airport 
authorities would otherwise be required to conduct will more 
efficiently manage volume as needed. This factor should reap economic 
benefits for the surrounding areas in terms of employment, and to other 
airport vendors who will not be adversely affected by a sudden increase 
in airport ID media issuance. Moreover, extending the authorities under 
an EAA to Amazon Air at these locations is consistent with Executive 
Order 13725 of April 16, 2016 (Steps to Increase Competition and Better 
Inform Consumers and Workers to Support Continued Growth of the 
American Economy \14\ to promote competition and reduce regulatory 
restrictions where possible. Finally, under the EAAs, TSA will have 
direct oversight of Amazon Air's security activities, rather than 
indirectly through an aircraft operator for which Amazon Air is an 
authorized representative. Given the scale of Amazon Air's commercial 
activities and physical infrastructure that must be secured at these 
airports, TSA compliance oversight will be more efficient and effective 
if conducted directly over Amazon Air.
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    \13\ See 49 U.S.C. 114(q).
    \14\ Published at 81 FR 23417 (April 20, 2016).
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    Therefore, TSA has determined that it is in the public interest to 
grant CVG, BWI, and RFD an exemption from the provision in 49 CFR 
1542.111 that limits the persons with whom an airport operator may 
execute an EAA to aircraft operators and foreign air carriers. Under 
this exemption, CVG, BWI, and RFD, respectively, may enter into an EAA 
with Amazon Air consistent with TSA EAA-requirements. These exemptions 
apply only to these airports and their respective EAAs with Amazon Air.

IV. Exemptions

    Applicability: These exemptions apply to CVG, BWI, and RFD.
    Exemption: For the duration of each exemption, CVG, BWI, and RFD, 
respectively, may apply for an amendment to their airport security 
program that permits the airport operator to enter into an EAA in 
accordance with 49 CFR 1542.111 with Amazon Air, notwithstanding that 
Amazon Air is not a TSA-regulated aircraft operator or foreign air 
carrier. The terms of the EAA replace the requirements in 49 CFR part 
1542 so long as Amazon Air complies with the EAA. This amendment and 
the EAA must require Amazon Air to comply with all relevant Security 
Directives and Emergency Amendments issued by TSA.
    Duration: These exemptions take effect on July 26, 2021. At CVG, 
BWI, and RFD, Amazon Air may begin performing as an EAA-holder on the 
date on which TSA approves an amendment to the respective airport 
operator's airport security program implementing each executed EAA. 
Each exemption will remain in effect while the airport operator's TSA-
approved airport security program remains in effect. TSA may direct 
revisions to the ASP amendment and EAA with regard to one or more of 
the covered airport operators, for security reasons under 49 CFR 
1542.105(b). TSA may rescind the ASP amendment and EAA, and may rescind 
or modify the exemption, with regard to one or more of the covered 
airport operators, at any time.

    Dated: July 19, 2021.
David P. Pekoske,
Administrator.
[FR Doc. 2021-15902 Filed 7-22-21; 4:15 pm]
BILLING CODE 9110-05-P