[Federal Register Volume 67, Number 251 (Tuesday, December 31, 2002)]
[Rules and Regulations]
[Pages 79881-79887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-33032]
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DEPARTMENT OF TRANSPORTATION
Transportation Security Administration
49 CFR Part 1544
[Docket No. TSA-2002-12394; Amendment No. 1544-3]
RIN 2110-AA05
Aviation Security: Private Charter Security Rules
AGENCY: Transportation Security Administration (TSA), DOT.
ACTION: Final rule.
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SUMMARY: In response to comments received, TSA is amending the aviation
security requirements concerning private charter passenger operations.
TSA issued the existing standard in June 2002, as an emergency final
rule and requested comments on it. The rule requires private charter
operators using aircraft with a maximum certificated takeoff weight of
95,000 pounds or more, to ensure that passengers and their carry-on
baggage are screened prior to boarding. In response to the comments and
after further analysis, TSA has determined that the existing threshold
does not adequately capture the appropriate group of aircraft. TSA is
now adopting an international security standard, in which private
charter operations in aircraft with a maximum certificated takeoff
weight greater than 45,500 kg (100,309.3 pounds), or with a passenger
seating configuration of 61 or more will be subject to the screening
requirement. As a result of this amendment, additional aircraft are now
covered by the rule that were not previously subject to it. TSA is
establishing a new compliance date for operators of these aircraft, in
order to provide them sufficient time to develop procedures required by
this rule and the security program. Also, in response to comments
received, TSA is permitting the use of non-TSA screeners in certain
circumstances.
DATES: Effective Date: The effective date for this rule is February 1,
2003.
Compliance Dates: For all private charter operators that were
covered under the rule published June 19, 2002 (67 FR 41635) and
continue to be covered under the rule as amended, TSA will issue the
final security program no later than January 3, 2003. These operators
must be in compliance with the program by February 1, 2003.
The compliance schedule for any private charter operators not
covered by the rule published June 19, 2002 (those in aircraft with a
maximum certificated takeoff weight less than 95,000 pounds and with a
passenger seating configuration of 61 or more), but covered under this
amendment, is as follows: these operators must request a copy of the
security program and provide comments to TSA by January 20, 2003; TSA
will issue the final security program no later than January 3, 2003;
these entities must be in compliance with the final security program by
March 1, 2003.
FOR FURTHER INFORMATION CONTACT: Emily Chodkowski, Aviation Security
Specialist, Transportation Security Administration, Room 3522,
Washington, DC 20591, 202-385-1838, [email protected].
SUPPLEMENTARY INFORMATION:
Availability of Final Rule
You can get an electronic copy using the Internet by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page http://dms.dot.gov/search;
(2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or
(3) Visiting the TSA's Laws and Regulations Web page at http://www.tsa.dot.gov/law_policy/law_policy_index.shtm.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
or advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question about this document
may contact the person listed in For Further Information Contact for
information. You can get further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.
Abbreviations and Terms Used in This Document
ATSA--Aviation and Transportation Security Act
CFR--Code of Federal Regulations
FAA--Federal Aviation Administration
FBO--Fixed Base Operator
ICAO--International Civil Aviation Organization
MTOW--Maximum Certificated Takeoff Weight
[[Page 79882]]
SIDA--Security Identification Display Areas
TCDS--Type Certificate Data Sheet
TSA--Transportation Security Administration
U.S.C.--United States Code
Background
The terrorist attacks of September 11, 2001, led Congress to enact
the Aviation and Transportation Security Act (ATSA), Pub. L. 107-71,
November 19, 2001. ATSA created the Transportation Security
Administration (TSA) and transferred responsibility for aviation
security from the Federal Aviation Administration (FAA) to TSA. On
February 22, 2002, TSA published a final rule transferring the bulk of
FAA's aviation security regulations to TSA and adding new security
standards required by ATSA. 67 FR 8340. Regulations concerning aircraft
operator security, including private charter operations, previously
codified at 14 CFR part 108, are now codified at 49 CFR part 1544.
Section 1544.101 requires aircraft operators to adopt and implement a
security program, the components of which vary depending on the type of
aviation operation, volume of passengers, departure and arrival
location, and type of aircraft. Depending on these operational
characteristics, the security program may include procedures for
screening individuals and property, training screeners, maintaining
perimeter security, protecting aircraft from unauthorized entry,
completing background investigations on employees, and other security
measures.
There are two types of private charters, which are defined in
section 1540.5. First, private charters include any flight in which the
charterer engages the total passenger capacity of the aircraft for
carrying passengers, the passengers are invited by the charterer, the
cost of the flight is borne entirely by the charterer, and the flight
is not advertised to the public in any way, to solicit passengers.
Second, private charters include any flight for which the total
passenger capacity of the aircraft is used for the purpose of civilian
or military air movement, conducted under contract with the U.S.
government or a foreign government. A public charter is defined as any
charter that is not a private charter.
Section 1544.101(f) sets forth the required security program
components for private charter operations that enplane or deplane into
a sterile area. Pursuant to Sec. 1544.101(f), these operations must
establish a program that includes acceptance and screening of
individuals and accessible property (1544.201, 1544.207), use of metal
detection devices (1544.209), use of X-ray systems (1544.211), security
coordinators (1544.215), law enforcement personnel (1544.217),
accessible weapons (1544.219), criminal history records checks
(1544.229, 1544.230), training for security coordinators and
crewmembers (1544.233), training for individuals with security-related
duties (1544.235), bomb or air piracy threats (1544.303), security
directives (1544.305), and all of subpart E concerning screener
qualifications when the aircraft operator performs screening.
Since 1978, operators of public charters have been subject to the
same security requirements as operators of aircraft in scheduled
service. Private charters, however, have operated under different
requirements. In private charters, the passengers choose to travel
together. They may be related to one another in some way, such as being
employed by the same company or on the same sports team, and so the
risk that one passenger would endanger the others appeared to be low.
Therefore, unless the private charter deplaned into or enplaned from a
sterile area, the full panoply of security procedures did not apply. In
the current threat environment, TSA believes it is necessary to
reevaluate these relationships to ensure that an adequate level of
security exists for private operations that do not make use of airport
sterile areas. As was plainly illustrated in the September 11 attacks,
terrorists may blend into their environment, interact with others
easily, persistently seek out vulnerabilities in the system, and travel
in groups in order to accomplish their goals more efficiently.
Therefore, TSA established additional security measures for private
charters that do not use airport sterile areas to prevent the
introduction of weapons, explosives, or incendiaries onto the aircraft
that could enable an individual to commandeer the aircraft and use it
to do harm. On June 19, 2002, TSA published a final rule that amended
part 1544 by requiring all private charter operators using aircraft
with a maximum certificated takeoff weight of 95,000 pounds or more
(95,000 MTOW) to increase security measures. 67 FR 41635, June 19,
2002. TSA selected this class of aircraft because their size could
cause great damage to targets on the ground. In addition, many of these
aircraft are used in scheduled passenger service one day and in private
charter service the next. While in scheduled passenger service, the
operator and crew must operate in accordance with a full security
program that requires securing the aircraft and screening individuals
and their accessible property. TSA reasoned that these operators should
ensure that all individuals and accessible property are screened,
regardless of whether they are in private charter or scheduled service.
Therefore, TSA added language in Sec. 1544.101(f) to require non-
government, private charter operators of aircraft with a 95,000 MTOW,
regardless of where they deplane or enplane passengers, to ensure that
the individuals on board and their accessible property are screened
prior to boarding. Also, TSA added language to paragraph (f) requiring
these private charter operators to comply with Sec. 1544.225 regarding
the security of aircraft and facilities. In order for individual
property screening to be effective, operators must ensure that the
aircraft is free of weapons, explosives, and incendiaries before
individuals board. Private charter operators must have security
measures in place to ensure the integrity of the aircraft.
For most passenger screening under part 1544, the passenger is
screened before entering a sterile area. The gate at which the
passenger boards the aircraft is typically within the sterile area.
Subpart B of part 1540 contains rules that apply to many persons,
including airport operators, airport tenants, aircraft operators,
foreign air carriers, indirect carriers, employees of these entities,
passengers, and individuals at airports. In order to make clear who
must comply with screening procedures, Sec. 1540.107 requires all
individuals who enter sterile areas to submit to screening. For private
charter screening, however, there may be no sterile area. Accordingly,
TSA amended Sec. 1540.107 to make clear that individuals on private
charters must submit to screening before boarding an aircraft. Similar
changes were made to Sec. 1540.111(a)(1), which provides that an
individual may not have a weapon, explosive, or incendiary when
screening begins.
TSA received more than 100 comments in response to the request for
comments issued with the rule in June. After consideration of these
comments and additional analysis, TSA believes that the current
threshold for determining which aircraft should be subject to the
screening requirement does not adequately capture the larger aircraft
TSA intended to cover. The weight threshold of 95,000 MTOW, although a
reasonable measure of aircraft size, is awkward in practical
application. In some cases, this figure divides an aircraft type into
two groups:
[[Page 79883]]
those certified to takeoff at weights over 95,000 pounds and those
certified at weights under 95,000 pounds. Therefore, larger aircraft
that TSA intends to cover in this rule fall out of the standard. For
instance, early models of the DC-9 aircraft are certified to takeoff
with weights less than 95,000 pounds, even though these aircraft can
seat 70 passengers and appear to be nearly identical to subsequent
models with a MTOW in excess of 95,000 pounds that are subject to the
screening requirement.
In addition, as a result of comments, TSA reviewed an international
security standard that was established to determine when hardened
cockpit doors should be required. This standard applies to aircraft
that weigh in excess of 45,500 kg. (100,309.3 pounds), or with 61 or
more seats. This standard, by using both weight and seating
configuration, captures the anomalies discussed above and in greater
detail below that the 95,000 MTOW threshold does not cover. Many
commenters suggested a seating configuration threshold and many
suggested the international standard. TSA agrees that the international
standard is a more complete approach to private charter security and so
is amending the rule to incorporate it.
Finally, TSA received many comments from charter operators and
small airports concerning the difficulties of scheduling charter
service to accommodate the presence of TSA screeners. Most charters
depend on flexibility in location and hours of operation to remain
economically viable. If TSA requires all private charter operators to
use TSA screeners and TSA screening checkpoints, charter operators will
lose their flexibility and economic vitality. As a result of these
comments, TSA is affirmatively authorizing the use of non-TSA screeners
under certain circumstances.
Summary of Comments
When TSA issued the rule in June 2002 establishing a weight
threshold to determine which private charter passengers must be
screened, the agency requested comments from the industry and
interested parties. Approximately 100 entities responded and commented
primarily on five areas: confusion about the definition of ``private
charter,'' the unique operational difficulties charters may face, small
airport concerns, issues specific to Alaskan operators, and the weight
threshold. A summary of the comments follows, arranged by subject
matter.
Some organizations requested clarification of the definition of
``private charter.'' The complete definition can be found in 49 CFR
1540.5. To summarize, a non-government, private charter is any aircraft
operator flight in which the charterer engages the total passenger
capacity of the aircraft, the cost of the flight is borne by the
charterer and not directly or indirectly by any passenger, and the
flight is not advertised in any way to solicit passengers. Also,
government private charters include operations in which the total
passenger capacity is used for government civilian or military air
travel. The rule exempts government charters from the screening
requirement, unless they enplane from or deplane into a sterile area.
Government charters, such as a Department of Defense flight, have
security procedures in place that adequately address security risks.
Also, the passengers on these government charters may be required to
carry weapons, which would be prohibited in other passenger operations.
Several commenters expressed concern about the adverse impact the
rule will have on private charter operations. Comment: Private charters
often use small airports in remote locations where there is no terminal
or baggage check area. If the final security program requires typical
screening checkpoints and magnetometers, charters would be forced to
alter their network of operations entirely and use large airports where
standard security procedures are in place. Also, charter operators
would have to change their hours of operation to depart only when
established screening checkpoints were in operation. These changes will
undermine the flexibility and economic benefits charters offer to
passengers, organizations, and small airports. Some organizations that
make use of private charters on a regular basis, such as professional
and collegiate sports teams, must travel to and from remote locations
frequently and at odd hours. Altering these charter operations
dramatically would impose significant barriers to completing normal
business activities. Many charter operators use Fixed Base Operators
(FBO) to handle administrative and operational issues at small
airports. However, there are only two FBOs in the country that have
screening facilities available for charter operations. If the final
security program required these operators to conduct all screening at
established screening checkpoints, additional facilities must be
constructed and installed, which would impose significant financial
burdens and time delays. Response: As is discussed in greater detail
below, TSA will authorize procedures to prevent these difficulties.
The commenters also asserted that private charters possess unique
characteristics that diminish the risk of dangerous or unlawful acts.
Comment: Typically, charter clientele are ``known'' to the charter
operators or to each other. They work together or play on the same
sports team, and so the likelihood that someone unknown or with suspect
motives would commandeer the aircraft or injure passengers is remote.
Also, the charter clientele often are ``high profile'' individuals who
generate crowds and confusion in airport terminals. Consequently,
additional security may be necessary and existing security officers are
diverted from their standard duties. Further, sports teams travel with
medical personnel and equipment that is needed in-flight. Some of this
equipment may not be permitted in the aircraft cabin under standard
screening procedures. The professional sports teams typically have
security procedures in place to ensure that passengers' baggage is
placed in a secure area and that only designated passengers are
permitted to board the aircraft. All of these unique qualities warrant
special procedures for private charter operations. Response: As is
discussed in greater detail below, TSA will authorize use on non-TSA
screeners to prevent these difficulties. We note that TSA does permit
some medical equipment that otherwise would be prohibited on scheduled
flights, and will work with the sports teams to consider what medical
equipment should be permitted in the cabin.
Many commenters expressed concern about the fate of small airports
that are unable to meet the level of security required in the charter
rule. Comment: If these airports cannot facilitate new screening
requirements, flights will be diverted to airports serving scheduled
operations. This change would have an adverse economic impact on many
communities. Also, large airports that become the beneficiaries of this
change might not be staffed to handle security procedures adequately.
One airport that serves a high number of private charters commented
that the rule would not be effective as a stand-alone security
mechanism, because screened charter passengers and their accessible
property could be co-mingled with unscreened passengers and baggage on
common ramp areas. Another regional airport urged TSA to develop a
``trusted traveler'' program to permit vetted passengers to bypass
security prior to boarding. Response: The private charter security rule
is not a ``stand-alone''
[[Page 79884]]
mechanism; there are additional security regulations that prevent
unscreened passengers from entering airport sterile areas and areas
that are designated as security identification display areas in
airports. In addition, the final security program TSA issues for
private charter operators will include procedures that prevent screened
passengers from mingling with non-screened passengers. The ``trusted
traveler'' program will be addressed in another rulemaking proceeding.
Commenters also urged TSA to adopt security procedures for private
charters operating in Alaska that can accommodate the special
characteristics of the Alaskan environment. Comment: Alaska has a
limited highway system and vast terrain, so there is a high volume of
intrastate air travel. For instance, private zinc and lead mines
located north of the Arctic Circle in a remote section of Alaska are
served exclusively by private charter service. The only road on the
property runs to their port site; none exist to any other community.
Alaska Airlines operates two private charters per week to the mines to
rotate personnel and supplies. There are many similar situations in
Alaska, where the need for accessible flexible air travel is great.
Response: The procedures TSA will authorize in the final security
program, such as permitting the use of non-TSA screeners, will provide
adequate flexibility to private charter operators in Alaska to ensure
that operations can continue as needed.
Comment: Many commenters asked for clarification on the kind of
security procedures required by the rule and the security program.
Response: The process used to develop air carrier and airport
security programs involves two distinct phases. The first is issuance
of a rule that establishes minimum security standards that the operator
or airport must meet. For the charter rule, TSA requires affected
private charter operators to adhere to a TSA-approved security program
that meets the standards of 49 CFR 1544.101(f) and 1544.103. Also, TSA
requires affected private charter operators to ensure that passengers
and their accessible property are screened prior to boarding. The
second phase of the process involves developing a security program that
sets forth the details and procedures used to meet the minimum rule
standards. The security program is considered sensitive security
information (SSI) and cannot be issued to the public, placed in the
docket, or discussed with specificity in this document. TSA developed a
standard security program and forwarded it to affected entities for
comment. Each entity had an opportunity to comment on the standard
program, which many have done in this proceeding, and requested changes
to accommodate unique operations or characteristics. TSA may approve
the changes or require the operator to adhere to the standard program.
The details of the program that the commenters are seeking most likely
exist in the final security program, which TSA cannot discuss in this
document. However, they can be addressed privately between the affected
operator and TSA staff.
The weight threshold is the factor that determines which private
charter operators must screen passengers and accessible property. This
issue generated many comments.
Comment: Some operators and manufacturers asked TSA to specify why
95,000 MTOW was selected. Some recommended that TSA redraw the line at
100,000 MTOW, which is part of the standard the International Civil
Aviation Organization (ICAO) adopted in February 2002 to distinguish
which cockpit doors must be reinforced to enhance security. Actually,
the accurate ICAO standard requires reinforcing cockpit doors in
aircraft with an MTOW of greater than 45,500 kg, (100,309.3 pounds), or
with a seating capacity greater than 60. Some commenters asserted that
TSA should include aircraft fuel capacity as part of the threshold, due
to the damage fuel can cause on impact. Also, use of ``more than 19
seats,'' or ``more than 75 seats'' in addition to, or in place of the
maximum takeoff weight, would be preferable to the standard established
in June 2002.
One manufacturer and its customers claimed that the standard
creates an inequity in the treatment of the Canadian-manufactured,
Bombardier Aerospace Global Express. There are several MTOWs listed for
the Global Express, some less than, some more than 95,000 MTOW. The
U.S.-manufactured Gulfstream V is the Global Express' primary
competitor, and has a 90,700 MTOW. Therefore, private charter
operations in the Gulfstream are not subject to the screening
requirement, but certain models of the Global Express are, pursuant to
the current rule language. Bombardier asserted that the rule is
discriminatory and constitutes an unfair trade practice.
Response: As is discussed in greater detail below, TSA believes
that the current international standard, which combines weight and
passenger seating capacity, is the standard to adopt for private
charter operations.
Rule Amendment and Response to Comments
I. Weight Threshold
TSA again analyzed charter operations, the existing aircraft fleet,
and the existing standard, and determined that the threshold for
passenger and carry-on baggage screening in private charter operations
should be changed. TSA is amending the rule to adopt the ICAO standard,
or private charter operations in aircraft with a MTOW greater than
45,500 kg., or with a passenger seating configuration of 61 or more. In
pounds, the threshold is a MTOW greater than 100,309.3.
When TSA established 95,000 MTOW as the threshold, TSA sought to
cover the larger aircraft that are used often in charter service. The
degree to which certain aircraft are selected for charter service often
depends on the number of aircraft in service, the number of runways and
airports the aircraft is capable of using, and the likelihood that the
operator is amenable to leasing the aircraft out to a group. For
instance, the DC-9 series aircraft are used in approximately 300
flights per day. (Please note that there is no data available that
distinguishes the number of charter flights from scheduled passenger
service). These aircraft can operate from short runways because of the
wing lift and significant engine thrust, which enables them to make use
of nearly all airports. These aircraft have a maximum passenger seating
configuration of more than 70 passengers, generally are not privately
owned, and have the potential to be used in charter and scheduled
service. When used in scheduled or public charter service, they must be
operated under a full security program (49 CFR 1544.101(a)), which
includes screening passengers and accessible property. TSA believes
that the DC-9 series and similar aircraft constitute the class of
aircraft that should be covered in this rule.
TSA also selected 95,000 MTOW for the rule published in June 2002,
because it had been used previously by FAA and TSA as a benchmark to
distinguish larger aircraft. For instance, pursuant to the authority
set forth in Special Federal Aviation Regulation (SFAR) 91, TSA issued
a notice to certain all-cargo carriers with 95,000 MTOW that required
them to adopt additional security measures.
Maximum certificated takeoff weight is the maximum weight at which
the FAA has determined an aircraft can take off, and is derived from
engineering data, aircraft weight, acceleration, lift, and performance
testing. The aircraft
[[Page 79885]]
manufacturer must submit design and performance figures to the FAA in
order to be certified to fly at certain weights, speeds, seating
configurations, fuel capacity, and so on. The MTOW is established
during this process, based on a review of the engineering data and
actual performance testing, and is listed on the FAA's Type Certificate
Data Sheet (TCDS). Over time, manufacturers may conduct additional
performance testing to prove to FAA that the aircraft can be operated
safely at a higher MTOW or speed, or with more cargo. In order to
increase these operational limits, the aircraft must undergo additional
performance testing and may be structurally modified. These subsequent
MTOW figures are then listed on the TCDS as the authorized takeoff
weight.
A review of the aircraft that fall within this standard indicates
they are used prevalently, would generate significant impact damage,
carry a high number of passengers, and have significant fuel capacity.
This threshold captures aircraft in which it is unlikely that all
passengers and crew know each other or share an affinity relationship,
which is the group TSA intended to cover. It is less likely that a
corporate jet with fewer than 20 seats would be chartered by a group of
passengers that are strangers or do not know the crew.
II. Seating Capacity
TSA and FAA have also used seating configuration to categorize
aircraft by size and use. Section 1544.101 establishes requirements for
security programs based on seating configuration, and requires greater
security measures for aircraft with a seating configuration of 61 or
more in scheduled or public charter service. Seating capacity, like
MTOW, is an indicator of aircraft size and the extent of damage the
aircraft would cause if used in a terrorist act. It is also reasonable
to assume that passengers in an aircraft with a large seating capacity
are less likely to know one another and the crew than individuals
traveling in a corporate jet. TSA has determined that it is appropriate
to use both seating configuration and MTOW to determine which aircraft
are subject to the rule, and therefore is adopting the ICAO standard
for the threshold in this amendment to the rule and the seating
configuration now used for scheduled and public charter service. By
using both the seating capacity and MTOW, TSA will cover the target
group of aircraft, but will exclude private corporate jets with a small
seating capacity.
TSA is adding the seating configuration of 61 seats or more for
several reasons. First, TSA believes it is important to cover the DC-9-
10 series aircraft, which have a seating configuration of 79 through
109. Some of these aircraft have a MTOW under 95,000 and would not be
subject to screening under the previous threshold. These aircraft were
designed specifically to operate from short runways due to their high
wing lift and powerful engine thrust. Consequently, they can operate at
many small airports, which might be serviced by charter operators.
There are approximately 47 DC-9-10 series aircraft currently registered
with FAA, making their potential for use in charter operations worthy
of consideration for enhanced security standards. By adding seating
configuration to the security threshold, TSA will capture the larger,
but lighter, charter aircraft. Many aircraft, although under 95,000
MTOW, have a seating configuration of more than 100 seats, and these
passengers should undergo security screening.
As discussed previously, ICAO recently established a requirement to
install reinforced cockpit doors in aircraft with an MTOW of 45,500 kg
(100,309.3 pounds) or a passenger seating configuration of 61 or more.
Many commenters urged TSA to adopt a standard based on seating
configuration, and some commenters suggested that TSA adopt the weight
limit used in the ICAO standard. For years, scheduled and public
charter aircraft with a passenger seating configuration of more than 61
seats have been required to operate with a full security program, which
includes passenger screening. (49 CFR 1544.101(a)).
Due to the addition of seating configuration as a threshold, there
are aircraft covered by the rule now that were not covered when the
rule was issued in June 2002. The following aircraft are included in
the group of new aircraft covered: British Aerospace ATP, 146-100A and
146-200A; Fokker-F.28 Mark 0100, F.28 Mark 4000, F.28 Mark 0070;
Bombardier DHC-8-401; McDonnell Douglas DC-9-10 series; and AVRO RJ85A.
Any private charter operators that use these aircraft and do not
operate aircraft covered by the rule issued June 2002, would not have
anticipated the need to develop screening procedures or comment on the
TSA standard security program. Therefore, TSA has established a
compliance schedule for these operators to ensure that they have
adequate time to prepare.
III. Screening
As discussed previously, many private charter operators use small
airports that do not have established screening checkpoints or
corresponding screening equipment. Also, many private charters operate
at odd hours when airport terminals with screening checkpoints are not
open. Many of the commenters raised this issue as a significant
impediment to their ongoing viability, and urged TSA to permit
screening by non-TSA personnel. However, a few commenters questioned
TSA's ability to allow screening by non-TSA employees. TSA has
determined that in certain cases, screening may be completed by
screeners that are not TSA employees. TSA will authorize the use of
non-TSA screeners in the security program, under certain circumstances.
For instance, if checkpoint screening in an airport terminal is not
available due to the time of day or location, non-TSA screeners might
be used. Also, if using an established airport screening checkpoint
creates logistical difficulties or disrupts ongoing screening
activities in the airport, non-TSA screeners might be used by the
private charter operators.
ATSA includes a requirement that Federal employees carry out
passenger and property screening. However, an examination of other
provisions of title 49 of the U.S. Code and the history of the
screening requirement demonstrates that Congress did not intend to
require screening on all flights. Congress has recognized that
passenger and property screening has not been required with respect to
all aircraft--in particular, the Under Secretary is specifically
authorized to exempt unscheduled operations from 49 U.S.C. 44901.
Congress recognized that other specific types of operations were not
subject to screening requirements at the time it enacted ATSA, and
imposed no such requirements.
TSA will authorize private charter operators to use non-TSA
screeners who complete the TSA-approved screener training program. TSA
has developed the training in modular format, and the non-TSA screeners
who screen these private charter operations must receive training on
the type of equipment and procedures they will be responsible for
using. For instance, if the screening location is not equipped with a
walk-through metal detector (WTMD), the screeners at this location are
not required to complete the training module that addresses WTMD. The
private charter security program will provide details concerning
training for screeners in private charter operations.
[[Page 79886]]
TSA will allow some flexibility in determining which individuals
may act as screeners for private charter operations that do not use
established screening checkpoints. TSA will consider such factors as
the degree of independence the screener has in relation to the
passengers, and the important duties the flightcrew must complete in
preparation for departure. A system in which individuals screen their
supervisors, close associates, or friends would not be advisable. This
would require the screener to find and report prohibited or illegal
items, which could lead to disciplinary action against a colleague or
supervisor, or the loss of the charter contract. An arm's-length
relationship between screener and passenger creates more effective and
thorough screening. Also, the aircraft flightcrew typically have many
safety and security responsibilities to complete prior to departure,
which could make completion of the screening impossible or ineffective.
Many commenters suggested that FBO employees, where present, are good
candidates for screeners. Also, commenters suggested that other airport
personnel, including local law enforcement personnel, may be
appropriate candidates to conduct screening. TSA is aware of the fact
that all affected entities must be able to complete the TSA-authorized
training for screeners shortly after the final security program is
released. The new compliance dates established in this rule amendment
should accommodate the time needed to adequately train screening
personnel.
Paperwork Reduction Act
This rule contains information collection activities subject to the
Paperwork Reduction Act (PRA) (44 U.S.C. 3507(d)). In accordance with
the PRA, the paperwork burden associated with the rule will be
submitted to the Office of Management and Budget (OMB) for review. The
PRA provides that an agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number. The OMB control number
for this information collection will be published in the Federal
Register after it has been approved by OMB.
Need: This rule requires operators using aircraft in private
charter operations with a maximum certificated takeoff weight greater
than 100,309.3 pounds, or a seating configuration of 61 or more to
ensure that individuals and their accessible property are screened
prior to boarding.
Description of Respondents: All new and existing operators using
aircraft in private charter operations with a maximum certificated
takeoff weight greater than 100,309.3 pounds, or a seating capacity of
61 or more.
Burden: TSA does not currently have precise data on which aircraft
operators have aircraft in private charter operations with a
certificated takeoff weight greater than 100,309.3 pounds, or a seating
configuration of 61 or more. TSA estimates that there are approximately
25 operators currently operating under 14 CFR part 121 (Domestic, Flag,
and Supplemental Operations) that have no program in place and so will
have a new paperwork burden under this rule. In addition, TSA estimates
that there are approximately 45 operators operating under 14 CFR part
121 with some portion of a security program with existing paperwork
procedures in place now. Also, there are airlines using aircraft with
an original certificated takeoff weight of 100,309.3 pounds or more in
charter service and in traditional commercial passenger service. These
operators must currently do screening for commercial service, but will
have an additional paperwork burden by now completing those screening
activities for private charters. It is very difficult for TSA to
determine what this new paperwork burden will be for these operators.
Accordingly, TSA will calculate the paperwork burden using estimates
assuming that 70 aircraft operators will be subject to this rule. Thus,
these assumptions will overestimate the overall burden. In addition,
TSA assumes no change in the number of aircraft operators over the next
10 years. Without this simplifying assumption, it would be impossible
to estimate the total effect of these changes over the ten-year period.
Each air carrier subject to this rule will need to establish a
program that provides for screening individuals and accessible
property; training all employees with security-related duties; training
all security coordinators and crewmembers; acknowledging receipt of,
and distributing Security Directives and Information Circulars; and
preparing, maintaining, and accommodating modifications to a security
program. The total ten-year paperwork burden is approximately 6,820
hours at a cost of $165,900. The annual burden totals approximately 560
hours at a cost of $11,200.
TSA anticipates that the regulated entities will have to purchase
no additional equipment.
Economic Analyses
This rulemaking was originally reviewed by the OMB. It is
significant within the meaning of the Executive Order and DOT's
policies and procedures. No regulatory analysis or evaluation
accompanies this rule. TSA is in the process of determining whether
this rule will have a significant economic impact on a substantial
number of small entities as defined in the Regulatory Flexibility Act
of 1980, as amended. TSA recognizes that this rule may impose costs on
some affected operators, which stem from developing and implementing
screening procedures and other security measures. However, given the
current security threat, TSA believes it is necessary to require these
enhanced security measures at this time. It is difficult to assess the
costs of the rule until the final security program is completed, which
TSA plans to finish shortly. TSA will assess the costs and benefits of
the rule once the security program is in final form and place an
economic analysis of it in the docket on or before January 24, 2003.
TSA will make changes to the rule, if necessary, as a result of the
economic analysis.
Executive Order 13132, Federalism
TSA has examined this rule under the principles and criteria of
Executive Order 13132, Federalism. TSA has determined that this action
will not have a substantial direct effect on the States, or the
relationship between the national government and the States, or the
distribution of power and responsibilities among the various levels of
government. Therefore, this final rule does not have federalism
implications.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards or related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety and security, are not considered
unnecessary obstacles. The statute also requires consideration of
international standards and, where appropriate, that they be the basis
for U.S. standards. TSA has assessed the potential effect of this
amendment and has determined that it will impose the same costs on
domestic and international entities and thus has a neutral trade
impact.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub.
L. 104-4 on March 22, 1995, is intended to curb the practice of
imposing unfunded
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Federal mandates on State, local, and tribal governments. Title II of
the Act requires each Federal agency to prepare a written statement
that assesses the effect of any Federal mandate found in a rulemaking
action that may result in an expenditure of $100 million or more
(adjusted annually for inflation) in any one year by State, local and
tribal governments, in the aggregate, or by the private sector. Such a
mandate is identified as a ``significant regulatory action.'' The Act
does not apply to a regulatory action in which no notice of proposed
rulemaking is published, as is the case in this proceeding.
Accordingly, TSA has not prepared a statement under the Act.
Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Review Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
Energy Impact
The energy impact of this rule has been assessed in accordance with
the Energy Policy and Conservation Act (EPCA), Pub. L. 94-163, as
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined
that this rule is not a major regulatory action under the provisions of
the EPCA.
List of Subjects in 49 CFR Part 1544
Air carriers, Aircraft, Aviation safety, Freight forwarders,
Reporting and recordkeeping requirements, Security measures.
The Amendment
For the reasons stated in the preamble, the Transportation Security
Administration amends 49 CFR chapter XII part 1544 as follows:
PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL
OPERATORS
1. The authority citation for part 1544 continues to read as
follows:
Authority: 49 U.S.C. 114, 5103, 40119, 44901-44905, 44907,
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.
2. Section 1544.101(f) is revised to read as follows:
Sec. 1544.101 Adoption and implementation.
* * * * *
(f) Private charter program. In addition to paragraph (d) of this
section, if applicable, each aircraft operator must carry out
Sec. Sec. 1544.201, 1544.207, 1544.209, 1544.211, 1544.215, 1544.217,
1544.219, 1544.225, 1544.229, 1544.230, 1544.233, 1544.235, 1544.303,
and 1544.305, and subpart E of this part and--
(1) Must adopt and carry out a security program that meets the
applicable requirements of Sec. 1544.103 for each private charter
passenger operation in which--
(i) The passengers are enplaned from or deplaned into a sterile
area; or
(ii) The aircraft has a maximum certificated takeoff weight greater
than 45,500 kg (100,309.3 pounds), or a passenger-seating configuration
of 61 or more, and is not a government charter under paragraph (2) of
the definition of private charter in Sec. 1540.5 of this chapter.
(2) The Under Secretary may authorize alternate procedures under
paragraph (f)(1) of this section as appropriate.
* * * * *
Issued in Washington, DC., on December 26, 2002.
Stephen J. McHale,
Deputy Administrator.
[FR Doc. 02-33032 Filed 12-30-02; 8:45 am]
BILLING CODE 4910-62-P