[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Notices]
[Pages 2633-2636]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00647]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration


Exemption for Exclusive Area Agreements at Certain Airports

AGENCY: Transportation Security Administration, DHS.

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ACTION: Notice.

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SUMMARY: The Transportation Security Administration (TSA) has statutory 
authority to grant an exemption from a regulation if TSA determines the 
exemption is in the public interest. TSA is granting an exemption from 
an aviation security regulation to permit eligible airport operators to 
enter into Exclusive Area Agreements (EAA) with Amazon Air, subject to 
requirements set forth in the Exemption. Also, TSA is rescinding an 
exemption issued on July 26, 2021, that permitted three airports to 
enter into EAAs with Amazon Air, as they are now covered by this 
exemption.

DATES: This Exemption becomes effective on January 17, 2023 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in effect until modified or rescinded by TSA through a notice published 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 protected].

SUPPLEMENTARY INFORMATION:

Purpose

    TSA's regulations provide that airport operators may enter into 
EAAs only with aircraft operators or foreign air carriers that have a 
security program under 49 CFR part 1544 or 1546, 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 
airports on behalf of aircraft operators. In July 2021,\1\ TSA 
determined it was in the public interest to grant an exemption to 
section 1542.111 to three airports to permit them to enter into EAAs 
with Amazon Air. That exemption applied to Cincinnati/Northern Kentucky 
International Airport (CVG), Baltimore/Washington International 
Thurgood Marshall Airport (BWI), and Chicago Rockford International 
Airport (RFD). TSA determined that the public interest was served 
because the EAAs would 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 exemption permitted the 
airports to leverage significant private sector technologies with 
respect to access control and monitoring systems that enhance security 
and minimize insider threat. The exemption also facilitated 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, under the exemption, TSA exercises direct 
regulatory oversight of Amazon Air concerning the security functions 
they perform under the EAAs.
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    \1\ See 86 FR 40072, Exemption for Exclusive Area Agreements at 
Certain Airports (July 26, 2021).
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    As discussed below, TSA has determined that the Exemption should be 
issued for all airport operators that have an ASP as set forth in 49 
CFR 1542.103(a)-(b), subject to TSA approval and the ability of the 
airport operators and Amazon Air to satisfy the requirements set forth 
in this Exemption.\2\ Furthermore, this Notice rescinds the previous 
Exemption TSA published in 2021.
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    \2\ Note that TSA will consider permitting other entities that 
are similarly situated to Amazon Air to enter into EAAs with airport 
operators.
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Background

Airport Security

    TSA administers a comprehensive regulatory program to govern the 
security of aviation, including standards for domestic airport 
operators, domestic aircraft operators, and foreign air carriers. The 
security requirements for domestic airport operators are codified at 49 
CFR part 1542 and include minimum standards for access control 
procedures, identification (ID) media, criminal history record 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,\3\ air operations area (AOA), 
and security identification display area (SIDA) of the airport. Part 
1542 requires airports to develop and follow TSA-approved ASPs \4\ that 
establish security procedures specific to each airport, and Security 
Directives, which apply to all airports.
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    \3\ See 49 CFR 1540.5 for definitions of terms used throughout 
this exemption.
    \4\ See 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 \5\ or foreign air carrier.\6\ 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.\7\ TSA requires the EAA to 
be in writing, and signed by the airport operator and the aircraft 
operator or foreign air carrier.\8\ 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.\9\
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    \5\ See 49 CFR part 1544.
    \6\ See 49 CFR part 1546.
    \7\ 49 CFR 1542.111(a).
    \8\ 49 CFR 1542.111(b).
    \9\ Id.
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    EAAs are an established part of TSA's regulatory structure for 
airport operators, and have been commonly used since 1978.\10\ 
Currently, there are more than 70 EAAs in place between aircraft 
operators or foreign air carriers and domestic airport operators. A 
typical example for the use of an EAA is where an entire airport 
terminal is serviced exclusively by one aircraft operator. At these 
locations, 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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    \10\ See 43 FR 60792 (Dec. 28, 1978).
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    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.\11\
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    \11\ See 49 CFR 1540.105.
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Entities Subject to the Exemption

    This Exemption applies to airport operators with a complete or 
supporting ASP as set forth in 49 CFR 1542.103(a) and (b), and Amazon 
Air. Amazon Air is a subsidiary of Amazon.com, Inc., an American 
multinational technology company based in Seattle, Washington engaged 
in e-commerce, cloud computing, digital streaming, artificial 
intelligence, and cargo shipping. 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. The increases are due, in 
part, to the COVID pandemic, the public's heightened

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reliance on online shopping for basic goods, and the Nation's need to 
move supplies quickly. Amazon Air estimates that these trends will not 
significantly diminish when the COVID pandemic subsides.
    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.\12\ Amazon Air then acts as an authorized representative for 
these full all-cargo aircraft operators \13\ at certain airports.
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    \12\ See 49 CFR 1544.101(h) for scope of a full all-cargo 
security program.
    \13\ These 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, Amazon Air performs security 
functions under TSA's Full All-Cargo Aircraft Operator Standard 
Security Program on behalf of the 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 \14\ 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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    \14\ 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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    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. Thus, Amazon Air 
will quickly hire new employees as it expands its operations at 
regulated airports. Hiring surges can occur at all airports throughout 
the year due to seasonal changes, construction, or other matters. 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 (STAs), adjudicate CHRCs, and issue the ID media.
    Amazon Air has represented to TSA that it has the capability and 
capacity to assume security responsibilities at other locations in 
addition to CVG, BWI, and RFI, including ensuring physical control of 
access points; adjudicating CHRCs for disqualifying offenses and 
submitting STAs for its employees; issuing ID media; and conducting ID 
media accountability audits. Amazon Air possesses sophisticated access 
control and monitoring systems that enhance security by significantly 
restricting access to cargo and aircraft. 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 to carry out all of the 
EAA functions at additional locations going forward.

Authority and Determination

    TSA may grant an exemption from a regulation if TSA determines that 
the exemption is in the public interest.\15\ 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 
airports 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 experience adverse effects from a sudden increase in 
airport ID media issuance. Moreover, extending the authorities under an 
EAA to Amazon Air at additional airport locations is consistent with 
Executive Order 13725 \16\ to promote competition and reduce regulatory 
restrictions where possible. Finally, under an EAA, 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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    \15\ See 49 U.S.C. 114(q).
    \16\ Steps to Increase Competition and Better Inform Consumers 
and Workers to Support Continued Growth of the American Economy, 
April 15, 2016.
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    Therefore, TSA has determined that it is in the public interest to 
grant eligible airport operators 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 and in accordance with the requirements set forth below, 
eligible airport operators may enter into an EAA with Amazon Air.
    First, Amazon Air will assume responsibility for the vetting and 
identification media requirements that apply to individuals with 
unescorted access to the SIDA. These requirements include collecting 
and transmitting biographic and biometric information needed to conduct 
CHRCs, a check of government watchlists, and an immigration check. 
Also, Amazon Air will issue airport-approved ID media to the 
individuals who successfully complete the vetting process.
    Second, at least 45 days prior to submitting the EAA/ASP amendment 
to the TSA Federal Security Director (FSD) at the airport for approval, 
the airport operator must notify the FSD and TSA's Assistant 
Administrator of Policy, Plans, and Engagement in writing, stating its 
interest in executing an EAA and requesting any documentation the 
parties must have to move forward with the EAA. Note that this 45-day 
notice provision is currently required when an airport operator seeks 
to amend its ASP. This 45-day notice will provide TSA sufficient time 
to evaluate the necessity and advisability of the EAA at that location.
    Third, the airport operator and Amazon Air must first obtain all 
information from TSA that is necessary to execute the EAA prior to 
executing it. For instance, the parties must have the most recent EAA 
template issued by

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TSA, an approved Alternative Measure on file regarding Amazon-issued ID 
media, and a temporary technical policy regarding STA submissions.

Exemption

    1. This Exemption applies to airport operators regulated under 49 
CFR 1542.103(a)-(b).
    2. The Exemption takes effect on January 17, 2023.
    3. For the duration of this Exemption, the eligible airport 
operators 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.
    4. The airport operator must provide written notice of its intent 
to seek an EAA and ASP Amendment to the FSD and TSA's Assistant 
Administrator for Policy, Plans, and Engagement at least 45 days prior 
to submitting the EAA and ASP amendment.
    5. The airport operator may not execute the EAA with Amazon Air 
until the airport operator and Amazon Air have received all information 
from TSA that is necessary to execute the EAA. Each airport operator 
seeking the EAA must receive an Alternative Measure that permits the 
airport operator to designate Amazon ID media as airport-approved. TSA 
may also require additional documentation to be on file as 
circumstances warrant.
    6. The terms of the EAA replace requirements set forth in 49 CFR 
part 1542 so long as Amazon Air complies with the EAA.
    7. The EAA must require Amazon Air to comply with all relevant 
Security Directives and Emergency Amendments issued by TSA.
    8. 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.
    9. The 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 for security reasons in 
accordance with 49 CFR 1542.105(c). 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: January 10, 2023.
David P. Pekoske,
Administrator.
[FR Doc. 2023-00647 Filed 1-13-23; 8:45 am]
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