Air Cargo Security Requirements

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25 October 2006

[Federal Register: October 25, 2006 (Volume 71, Number 206)]

[Rules and Regulations]

[Page 62545-62550]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr25oc06-8]

[[Page 62545]]

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Part IV

Department of Homeland Security

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Transportation Security Administration

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49 CFR Parts 1544, 1546, and 1548

Air Cargo Security Requirements; Compliance Dates; Amendment; Interim

Final Rule

[[Page 62546]]

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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1544, 1546, and 1548

[Docket No. TSA-2004-19515; Amendment Nos. 1544-6, 1546-3, and 1548-3]

RIN 1652-AA52

Air Cargo Security Requirements; Compliance Dates; Amendment

AGENCY: Transportation Security Administration (TSA), DHS.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule (IFR) amends the Air Cargo Security

Requirements final rule (Air Cargo Final Rule) (published May 26, 2006,

and corrected in June 2006) by extending the compliance dates by which

certain requirements must be completed. TSA has concluded that the

regulated community will be unable to meet some deadlines in the Air

Cargo Final Rule because of the large number of employees and agents

subject to the requirements. TSA is, therefore, extending dates for the

following requirements: That aircraft operators, foreign air carriers,

and indirect air carriers (IACs) ensure that their employees and agents

with unescorted access to cargo successfully complete a Security Threat

Assessment (STA); that IACs ensure that their employees and agents

performing security-related duties are trained in the IAC's security

program; and that airport operators ensure that individuals with

unescorted access to expanded Security Identification Display Areas

(SIDA) are subjected to a criminal history records check (CHRC) and a

name-based security threat assessment (STA), receive proper security

training, and hold appropriate personnel identification.

DATES: Effective Date: This rule is effective October 23, 2006.

Comment Date: Comments must be received by December 26, 2006.

Compliance Dates: Compliance date for STAs for employees under

Sec. Sec. 1544.228, 1546.213, 1548.15, and for IAC proprietors,

general partners, officers, directors and certain owners of the entity

under Sec. 1548.16: Changed from December 1, 2006 to March 15, 2007.

Compliance date for STAs for agents under Sec. Sec. 1544.228,

1546.213 and 1548.15: Changed from December 1, 2006 to June 15, 2007.

Compliance date for training of IAC employees under Sec. Sec.

1548.11: Remains November 22, 2006.

Compliance date for training of IAC agents Sec. Sec. 1548.11:

Changed from November 22, 2006 to June 15, 2007.

Compliance date for submission and approval of extension of Secure

Identification Display Area (SIDA) boundaries to cargo areas under

Sec. 1542.205(a)(2) and (3): Remains October 23, 2006.

Compliance date for full compliance with requirements for

individuals with unescorted access to expanded SIDA under Sec. Sec.

1542.205(b)(2), 1542.209, 1542.211, 1542.213, and Security Directives:

Changed from October 23, 2006 to January 22, 2007.

ADDRESSES: You may submit comments, identified by the TSA docket number

to this rulemaking, using any one of the following methods:

Comments Filed Electronically: You may submit comments through the

docket Web site at http://dms.dot.gov You also may submit comments through the Federal Rulemaking portal at http://www.regulations.gov.

Comments Submitted by Mail, Fax, or In Person: Address or deliver

your written, signed comments to the Docket Management System, U.S.

Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,

Washington, DC 20590-0001; Fax: 202-493-2251.

See SUPPLEMENTARY INFORMATION for format and other information

about comment submissions.

FOR FURTHER INFORMATION CONTACT: Tamika McCree, Office of

Transportation Security Network Management (TSA-28), Transportation

Security Administration, 601 South 12th Street, Arlington, VA 22202;

(571-227-2632); tamika.mccree@dhs.gov.

SUPPLEMENTARY INFORMATION:

Comments Invited

This interim final rule is being adopted without prior notice and

prior public comment. However, to the maximum extent possible, TSA will

provide 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. We also invite comments relating to the economic, environmental,

energy, or federalism impacts that might result from adopting the

proposals in this document. See ADDRESSES above for information on

where to submit comments.

With each comment, please include your name and address, identify

the docket number at the beginning of your comments, and give the

reason for each comment. 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 two

copies, in an unbound format, no larger than 8.5 by 11 inches, suitable

for copying and electronic filing.

If you want 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 them 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 receives a request to

[[Page 62547]]

examine or copy this information, TSA will treat it as any other

request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and

the Department of Homeland Security's (DHS's) FOIA regulation 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 submitting the comment (or signing 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

You may review the comments in the public docket by visiting the

Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except

Federal holidays. The Dockets Office is located on the plaza level of

the Nassif Building at the Department of Transportation address,

previously provided under ADDRESSES. Also, you may review public

dockets on the Internet at http://dms.dot.gov.

Availability of Rulemaking Document

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://

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/law_lib.html

Background

On May 26, 2006, TSA published a final rule in the Federal Register

(71 FR 30478) on air cargo security requirements (Air Cargo Final Rule)

to enhance and improve the security of air cargo transportation.

Sections 1544.228, 1546.213, 1548.15, and 1548.16 of the final rule

incorrectly stated that the deadline for completion of the security

threat assessments (STAs) required by those sections was November 22,

2006 (71 FR 30478, 30511-12 and 30516). This conflicted with the DATES

section of the rule, which listed the compliance date for STAs as

December 1, 2006. On June 2, 2006, TSA issued a notice correcting the

deadline for STAs in the pertinent regulatory text to December 1, 2006

(71 FR 31964). Also, on June 8, 2006 (71 FR 33254), TSA published an

additional correction notice that added an amendatory instruction in

Sec. 1548.1 to remove the word ``passenger'' that had inadvertently

been included in the Air Cargo Final Rule.

Requirements of the Air Cargo Final Rule

The Air Cargo Final Rule, in part, requires that aircraft

operators, foreign air carriers, and indirect air carriers (IACs)

ensure that security threat assessments (STAs) are completed on their

employees and agents with unescorted access to cargo under Sec. Sec.

1544.228, 1546.213, and 1548.15, and on proprietors, general partners,

officers, directors, and certain owners of an IAC entity under Sec.

1548.16. The compliance date for these sections (following the June 2,

2006 correction) is December 1, 2006. In addition, Sec. 1548.11

requires that by November 22, 2006, IACs must ensure that no employee

or agent may perform any security-related duties under the IAC's

security program unless that employee or agent is properly trained.

Another requirement of the Air Cargo Final Rule provides that each

part of the air operations area in an airport that is regularly used to

load or unload cargo from an aircraft, and areas where cargo is present

after a carrier or IAC accepts it, must be a security identification

display area (SIDA) (See Sec. Sec. 1542.205(a)(2) and (3)). Under

requirements in effect before publication of the Air Cargo Final Rule,

airport operators must ensure that each individual with unescorted

access to the SIDA is subject to a criminal history records check

(CHRC), holds an appropriate identification, successfully completes

training in accordance with the TSA-approved curriculum, and undergoes

a name-based STA by TSA (See Sec. Sec. 1542.209, 1542.211 and

1542.213(b); and Security Directives).\2\ The current deadline for all

of the above SIDA requirements is October 23, 2006.

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\2\ Security Directives constitute sensitive security

information (SSI) that can be disclosed only to persons with a need

to know, in accordance with 49 CFR part 1520.

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On June 1, 2006, TSA issued proposed revised and new security

programs for aircraft operators, foreign air carriers (FACs), and IACs

that would implement the requirements of the Air Cargo Final Rule.\3\

TSA received extensive comments to the proposed revised and new

security programs.

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\3\ Security programs constitute SSI that can be disclosed only

to persons with a need to know, in accordance with 49 CFR part 1520.

Therefore, the security programs could only be distributed to

affected aircraft operators, foreign air carriers, and IACs for

comment.

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STAs and Training for Employees and Agents of Aircraft Operators,

Foreign Air Carriers, and IACs

Some commenters were very concerned about their ability to comply

with the deadlines for completion of STAs and training for the

employees and numerous agents of the regulated parties. Under the final

rule, the deadline for completion of training is November 22, 2006.

Agents are not direct employees of the air carriers, nor are they

directly regulated by TSA. Rather, ``agents'' are entities under

contract with the air carriers to perform a security responsibility.

For example, an IAC may contract with a cartage agent to move cargo

from a warehouse to an airport. An IAC may use the services of many

agents for cartage and warehousing, and each of those cartage and

warehousing agents may serve multiple IACs. IACs are responsible for

ensuring that their agents are properly trained to perform security

responsibilities, and actually carry out the IAC's security program.

Commenters raised concerns as to how these agents will determine

whether or not the driver picking up, or delivering cargo, actually has

undergone an STA and has been trained in the IAC security program. TSA

is enhancing the IAC Management System (IACMS) to process STA

applications and results, and is providing online training for

employees and agents. However, only IACs will have access to the IACMS

data base to determine if a driver has an STA. Commenters stated that

it would be helpful to have a system that will allow them to identify

and verify those individuals with the requisite STAs and training.

Otherwise, in order for an IAC to ensure compliance with the Air Cargo

Final Rule and their security program, the IAC would have to conduct an

STA

[[Page 62548]]

and train a driver who may already have undergone an STA and had the

training. This would be unnecessary and duplicative.

This is an important issue that bears both on the regulated

parties' compliance and on aviation security. In recognition of this

complex issue, and to facilitate a high level of compliance with the

requirements of the Air Cargo Final Rule, TSA is extending the

deadlines for STAs and training, as discussed below. TSA has provided

more time for the STAs and training of the agents of airport operators,

FACs and IACs than for employees because there are fewer employees than

agents, and airport operators and air carriers have more control over

their own direct employees, than agents.

CHRCs, STAs, and Identification Media for SIDA Access; Training

TSA has also received comments indicating that there will be

hundreds, if not thousands, of airport employees who will be affected

by the expansion of SIDA to include air operation areas regularly used

to load cargo on, or unload cargo from, an aircraft that is operated

under a full program or a full all-cargo program as specified in Sec.

1542.205. These comments indicate that it will not be possible to

subject each of these individuals to a CHRC, a name-based STA, SIDA

training, or the appropriate personnel identification requirements by

October 23, 2006.

Extension of Compliance Dates

For the above stated reasons, TSA has determined that the

compliance date for STAs for employees of aircraft operators, FACs, and

IACs under Sec. Sec. 1544.228, 1546.213, 1548.15, and 1548.16 will be

extended to March 15, 2007. STAs for agents of these entities will be

extended to June 15, 2007.

The compliance date of November 22, 2006 for training is still

applicable to employees of aircraft operators, foreign air carriers and

IACs under Sec. 1548.11. Because of the high volume of agents and the

complications associated with carriers trying to determine which agents

need STAs and training, however, TSA is extending the deadline for the

training of IAC agents from November 22, 2006 to June 15, 2007.

Based on comments received, TSA is also extending the deadlines for

subjecting each individual with unescorted access to a SIDA to a CHRC,

to a name-based STA, to SIDA training, or to personnel identification

requirements from October 23, 2006 to January 22, 2007. TSA is not

changing the compliance date for submission and approval of the new

SIDA boundaries, as there is no need to do so. Airport operators will

already know where cargo is present and being loaded and unloaded;

therefore, they will be able to comply with the October 23, 2006

compliance date.

Summary of Compliance Date Changes

TSA has made the following amendments to the Air Cargo Final Rule

text: \4\

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\4\ All of the compliance dates were stated in the Air Cargo

Final Rule text, except the requirement that airport operators

extend the boundaries of the SIDA to cargo operations. The

compliance date for this requirement is the effective date of the

Air Cargo Final Rule: October 23, 2006.

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Air Cargo Final Rule (May 26,

STAs/training and other requirements 2006), as amended (June 2, 2006), Amended compliance dates

compliance dates

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STAs for employees of aircraft December 1, 2006................... March 15, 2007.

operators, foreign air carriers and

indirect air carriers (IACs) under

Sec. Sec. 1544.228, 1546.213,

1548.15.

STAs for agents of aircraft operators, December 1, 2006................... June 15, 2007.

foreign air carriers and IACs under

Sec. Sec. 1544.228, 1546.213,

1548.15.

STAs for IAC proprietors, general December 1, 2006................... March 15, 2007.

partners, officers, directors and

certain owners under Sec. 1548.16.

Training of IAC employees under Sec. November 22, 2006.................. Same.

1548.11.

Training of IAC agents under Sec. November 22, 2006.................. June 15, 2007.

1548.11.

Establishing the boundaries of SIDA October 23, 2006................... Same.

for air cargo areas under Sec.

1542.205(a)(2).

CHRC, training, name-based STAs, and October 23, 2006................... January 22, 2007.

ID requirements for individuals with

unescorted access to expanded SIDA

under Sec. Sec. 1542.205,

1542.209, 1542.211, 1542.213, and SDs.

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Good Cause for Immediate Adoption and Immediate Effective Date

TSA is issuing this amendment without providing the public prior

notice and the opportunity for comment, and it has an effective date

less than 30 days after publication in the Federal Register.

Sections 553(b) and (d) of the Administrative Procedure Act (APA)

(5 U.S.C. 553) authorize agencies to dispense with certain notice

procedures for rules when they find good cause to do so. Under section

553(b), the requirements of notice and opportunity for comment do not

apply when the agency for good cause finds that those procedures are

``impracticable, unnecessary, or contrary to the public interest.''

Section 553(d) allows an agency, upon finding good cause, to make a

rule effective immediately, thereby avoiding the 30-day delayed

effective date requirement in section 553.

TSA finds that providing an opportunity for prior notice and public

comment on the extensions of the compliance dates in the provisions of

the Air Cargo Final Rule identified in the IFR is unnecessary and

contrary to the public interest. As detailed above, TSA believes that:

(a) Regulated parties will have significant difficulty in complying

with the regulations in the time specified; (b) no party will be

adversely affected by the extensions; (c) the lack of notice will not

cause any hardship; and (d) it would be impracticable to provide timely

notice and opportunity to comment prior to the implementation dates

currently set forth in the regulations.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.)

requires that a Federal agency 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. TSA has determined

that there are no current or new information collection requirements

associated with this rule.

[[Page 62549]]

Regulatory Analyses

Executive Order 12866 Assessment

In conducting these analyses, TSA has determined that this

rulemaking is not a ``significant regulatory action'' as defined in the

Executive Order.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.,

as amended by the Small Business Regulatory Enforcement Fairness Act

(SBREFA) of 1996), requires agencies to perform a review to determine

whether a proposed or final rule will have a significant economic

impact on a substantial number of small entities when the

Administrative Procedure Act (APA) requires notice and comment

rulemaking. Consistent with the APA and for the reasons provided under

``Good Cause for Immediate Adoption,'' TSA is issuing this rule as an

interim final rule. Accordingly, the regulatory flexibility analysis as

described in the RFA is not required.

TSA notes, however, that we have analyzed the small business

impacts of the air cargo rulemaking that this IFR amends. A Final

Regulatory Flexibility Analysis (FRFA) was placed on the public docket

in the Regulatory Impact Analysis document for the Air Cargo Final Rule

issued on May 26, 2006. The extension of the compliance dates in this

IFR provides more flexibility than the final rule.

International Trade Impact Assessment

The Trade Agreement 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 rulemaking and has determined that it will not create

any unnecessary obstacles to foreign commerce.

Unfunded Mandates Assessment

The Unfunded Mandates Reform Act of 1995 is intended, among other

things, to curb the practice of imposing unfunded Federal mandates on

State, local, and tribal governments. Title II of the Act 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 a $100 million or more expenditure (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 rulemaking does not contain such a mandate. The requirements

of Title II of the Act, therefore, do not apply and TSA has not

prepared a statement under the Act.

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.

Environmental Analysis

TSA has reviewed this action for purposes of the National

Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has

determined that this action will not have a significant effect on the

human environment.

Energy Impact Analysis

The energy impact of the action has been assessed 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 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, Reporting and recordkeeping requirements,

Security measures.

The Amendment

For the reasons set forth above, the Transportation Security

Administration amends title 49 of the Code of Federal Regulations,

parts 1544, 1546, and 1548, 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, 40113, 44901-44905, 44907,

44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.

2. Revise Sec. 1544.228(d) to read as follows:

Sec. 1544.228 Access to cargo: Security threat assessments for cargo

personnel in the United States.

* * * * *

(d) Operators must comply with the requirements of this section not

later than March 15, 2007, for direct employees and not later than June

15, 2007, for agents.

PART 1546--FOREIGN AIR CARRIER SECURITY

3. 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.

4. Revise Sec. 1546.213(d) to read as follows:

Sec. 1546.213 Access to cargo: Security threat assessments for cargo

personnel in the United States.

* * * * *

(d) Operators must comply with the requirements of this section not

later than March 15, 2007, for direct employees and not later than June

15, 2007, for agents.

PART 1548--INDIRECT AIR CARRIER SECURITY

5. The authority citation for part 1548 continues to read as follows:

Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44913-44914,

44916-44917, 44932, 44935-44936, 46105.

6. Revise Sec. 1548.11(d) to read as follows:

Sec. 1548.11 Training and knowledge for individuals with security-

related duties.

* * * * *

(d) Operators must comply with the requirements of this section not

later than November 22, 2006, for direct employees and not later than

June 15, 2007, for agents.

7. Revise Sec. 1548.15(d) to read as follows:

Sec. 1548.15 Access to cargo: Security threat assessments for

individuals having unescorted access to cargo.

* * * * *

[[Page 62550]]

(d) Operators must comply with the requirements of this section not

later than March 15, 2007, for direct employees and not later than June

15, 2007, for agents.

8. Revise Sec. 1548.16(a) to read as follows:

Sec. 1548.16 Security threat assessments for each proprietor, general

partner, officer, director, and certain owners of the entity.

(a) Each indirect air carrier, or applicant to be an indirect air

carrier, must ensure that each proprietor, general partner, officer,

director, and owner of the entity has successfully completed a Security

Threat Assessment under part 1540, subpart C, of this chapter. Each

indirect air carrier must comply with the requirements of this section

not later than March 15, 2007.

* * * * *

Issued in Arlington, Virginia, on October 20, 2006.

Robert D. Jamison,

Deputy Administrator.

[FR Doc. 06-8904 Filed 10-23-06; 2:47 pm]

BILLING CODE 9110-05-P