[Federal Register Volume 69, Number 217 (Wednesday, November 10, 2004)]
[Proposed Rules]
[Pages 65258-65291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24883]



[[Page 65257]]

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Part II





Department of Homeland Security





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Transportation Security Administration



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49 CFR Part 1540 et al.



Air Cargo Security Requirements; Proposed Rule

Federal Register / Vol. 69, No. 217 / Wednesday, November 10, 2004 / 
Proposed Rules

[[Page 65258]]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1540, 1542, 1544, 1546 and 1548

[Docket No. TSA-2004-19515]
RIN 1652-AA23


Air Cargo Security Requirements

AGENCY: Transportation Security Administration (TSA), Department of 
Homeland Security (DHS).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The Transportation Security Administration (TSA), an agency 
within the Department of Homeland Security's Border and Transportation 
Security Directorate, proposes to amend current transportation security 
regulations to enhance and improve the security of air cargo 
transportation. The Aviation and Transportation Security Act directed 
TSA to implement measures to enhance the security of air cargo 
transported in both passenger and all-cargo aircraft. In discharging 
this responsibility, TSA conducted analyses of internal and external 
threats, risk and vulnerability assessments, and security measures 
already in place. This proposed rulemaking would require the adoption 
of security measures throughout the air cargo supply chain; these 
security measures will be applicable to airport operators, aircraft 
operators, foreign air carriers, and indirect air carriers. These 
proposed regulatory requirements would impose significant barriers to 
terrorists seeking to use the air cargo transportation system for 
malicious purposes.
    This proposal would also change the applicability of the 
requirement for a ``twelve-five'' security program from aircraft with a 
maximum certificated takeoff weight ``of 12,500 pounds or more'' to 
those with a maximum certificated takeoff weight of ``more than 12,500 
pounds.'' This change would conform the regulation to recent 
legislation.

DATES: Send your comments on or before January 10, 2005.

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. 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 Register on April 11, 2000 (65 FR 
19477), or you may visit http://dms.dot.gov.
    You also may submit comments through the Federal eRulemaking 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.
    Comments that include trade secrets, confidential commercial or 
financial information, or sensitive security information (SSI) should 
not be submitted to the public regulatory docket. Please submit such 
comments separately from other comments on the proposed rule. Comments 
containing trade secrets, confidential commercial or financial 
information, or SSI should be appropriately marked as containing such 
information and submitted by mail to the individual listed in FOR 
FURTHER INFORMATION CONTACT.
    Reviewing Comments in the Docket: You may review the public docket 
containing comments in person in 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 above. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.
    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: Tamika McCree, Transportation Security 
Administration, Office of Transportation Security Policy (TSA-9), 601 
South 12th Street, Arlington, Virginia, 22202, (571-227-2632), 
<a href="/cdn-cgi/l/email-protection#d4a0b5b9bdbfb5fab9b7b7a6b1b194b0bca7fab3bba2"><span class="__cf_email__" data-cfemail="b8ccd9d5d1d3d996d5dbdbcaddddf8dcd0cb96dfd7ce">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Comments Invited

    The 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 proposal, explain the reason for any recommended change, 
and include supporting data. You may submit comments and material 
electronically, in person, or by mail 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 your comments on this 
rulemaking, 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.
    Except for comments containing confidential information and SSI, we 
will file in the public docket all comments we receive, as well as a 
report summarizing each substantive public contact with TSA personnel 
concerning this rulemaking. The docket is available for public 
inspection before and after the comment closing date.
    We will consider all comments we receive on or before the closing 
date for comments. We will consider comments filed late to the extent 
practicable. We may change this rulemaking in light of the comments we 
receive.

Availability of Rulemaking Documents

    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 Law and Policy web page at http://www.tsa.dot.gov/public/index.jsp.
    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.

Abbreviations and Terms Used in This Document

ACSSP--Air Carrier Standard Security Program
ASAC--Aviation Security Advisory Committee
ATSA--Aviation and Transportation Security Act
CBP--U.S. Customs and Border Protection

[[Page 65259]]

C-TPAT--Customs-Trade Partnership Against Terrorism
DHS--Department of Homeland Security
DOT--Department of Transportation
DSIP--Domestic Security Integration Program
EA--Emergency Amendment
FAA--Federal Aviation Administration
IAC--Indirect Air Carrier
IACSSP--Indirect Air Carrier Standard Security Program
IC--Information Circular
SD--Security Directive
SIDA--Security Identification Display Area
SSI--Sensitive Security Information
TSA--Transportation Security Administration

Outline of Notice of Proposed Rulemaking:

I. Background
II. Efforts Leading to the Development of This NPRM
    A. The Aviation Security Advisory Committee
    B. Air Cargo Security Strategic Plan
    C. TSA-CBP Air Cargo Coordination
III. Summary of the Rulemaking
    A. Who is affected by this NPRM?
    B. Why is this regulatory change necessary?
    C. How did TSA enhance cargo security after September 11, 2001?
    D. What would this proposed rulemaking do to strengthen the 
current air cargo security regulatory regime?
    E. How will TSA enforce compliance?
    F. Did TSA invite recommended changes?
    G. Were other solutions considered and why were these proposals 
chosen over others?
IV. Summary of Proposed Amendments
    A. Current regulation of aircraft operators and foreign air 
carriers
    B. Security Threat Assessments for Air Cargo Workers
    C. Security Measures for Persons Boarding an All-cargo Aircraft
    D. Screening Cargo
    E. Securing the Cargo Operating Environment
    F. Accepting Cargo from Comparable Entities
    G. Known Shipper Program
    H. Establish All-Cargo Operator Standard Security Program
    I. Strengthen Foreign Aircraft Operator Security Measures
    J. Enhancing Existing Requirements for IACs
    K. Establishing New Training and Personnel Requirements
V. Section-by-Section Analysis of Proposed Changes
VI. Compliance Schedule
VII. Fee Authority for the Security Threat Assessment
VIII. Regulatory Evaluation Summary
IX. The Proposed Amendment
X. International Trade Impact Assessment
XI. Unfunded Mandates Reform Act Analysis
XII. Paperwork Reduction Act
XIII. International Compatibility
XIV. Executive Order 13132, Federalism
XV. Environmental Analysis
XVI. Energy Impact

I. Background

    On September 11, 2001, terrorist attacks against the United States 
resulted in unprecedented human casualties and property damage. In 
response to those attacks, Congress passed the Aviation and 
Transportation Security Act (ATSA), which established the 
Transportation Security Administration. TSA was created as an agency 
within the Department of Transportation (DOT), operating under the 
direction of the Under Secretary of Transportation for Security. On 
March 1, 2003, TSA was transferred to the Department of Homeland 
Security (DHS);\1\ the office formerly designated DOT Under Secretary 
for Transportation Security is now Administrator of TSA. TSA continues 
to have the statutory authority and responsibility that ATSA granted to 
the Administrator with respect to security in all modes of 
transportation.\2\ In ATSA, Congress set forth the following specific 
requirements for TSA in the area of air cargo security:
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    \1\ Homeland Security Act, Pub. L. 107-296 (Nov. 25, 2002).
    \2\ 49 U.S.C. 114(d).
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    <bullet> Provide for screening of all property, cargo, carry-on and 
checked baggage, and other articles, that will be carried aboard a 
passenger aircraft operated by an air carrier or foreign air carrier; 
\3\ and
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    \3\ 49 U.S.C. 44901(a)
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    <bullet> Establish a system to screen, inspect, or otherwise ensure 
the security of freight that is to be transported in all-cargo aircraft 
as soon as practicable.\4\
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    \4\ 49 U.S.C. 44901(f)
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    TSA has addressed air cargo security through the issuance of 
regulations, Security Directives (SDs), and Emergency Amendments (EAs) 
to security programs. All cargo loaded on passenger aircraft is subject 
to security requirements through TSA's known shipper program, which 
prohibits operators of passenger aircraft from transporting any cargo 
from shippers that are unknown.\5\ Notably, in 49 U.S.C. section 
44901(a), Congress expressly provided that the known shipper program is 
a form of screening that need not be carried out by a Federal 
government employee, unlike most screening of persons and property that 
is loaded on a passenger aircraft. Thus, aircraft operators carry out 
screening using the known shipper program.
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    \5\ See discussion on Known Shipper Program at IV.G.
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    The known shipper program has been substantially strengthened since 
September 11, 2001, and additional security measures have been 
implemented over the last two years. TSA prohibits aircraft operators 
in passenger operations under full programs \6\ from transporting cargo 
unless a Known Shipper ships it. Entities may qualify for Known Shipper 
status if they meet certain security requirements. This proposed rule 
would codify the known shipper program as well as provide enhancements 
to the existing structure to strengthen the program further.
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    \6\ See discussion of aircraft operator security programs in IV. 
of this preamble.
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    This proposed rule also includes other elements to improve security 
of air cargo carried on passenger aircraft. With respect to all-cargo 
aircraft, this proposed rule would enhance security significantly by 
requiring the adoption of a number of measures by airports, aircraft 
operators, and indirect air carriers (IACs), sometimes known as air 
freight forwarders.
    Following the acts of terrorism on September 11, the Federal 
Aviation Administration (FAA) and then the Transportation Security 
Administration (TSA) took steps to amend security regulations governing 
aviation security, including the acceptance and handling of air cargo. 
While other agencies, including FAA, regulate safety considerations in 
the transportation of cargo and U.S. Customs and Border Protection 
(CBP) regulates the entry of cargo into the United States, TSA is 
solely responsible for the security of shipments of air cargo. The 
requirements outlined in this proposed rule, including those presently 
implemented by security directives, would comprehensively enhance the 
security of air cargo. These proposals would fill gaps in existing air 
cargo security regulations to mitigate the threat of terrorism to this 
vital industry.
    Section IV of this NPRM specifically addresses each of the changes 
made to 49 CFR parts 1540-1548 and discusses how those changes will 
improve air cargo security. The major objectives of the program are to 
prevent passenger and large all-cargo aircraft from being used as 
weapons and to prevent unauthorized explosives from being carried 
aboard, and potentially detonated, during flight. In summary, DHS is 
proposing to establish a Standard Security Program for all-cargo 
aircraft operators utilizing aircraft with a take-off weight of over 
45,500 kg. These carriers currently are not covered by the requirement 
in section

[[Page 65260]]

1544.101(a) as they relate to the cargo provisions of section 1544.205 
because they do not carry passengers. Instead, these all-cargo 
operators typically follow provisions of 1544.101(d) and (e), which are 
intended to govern the operations of much smaller aircraft. The current 
rules for cargo carried on certain passenger aircraft, and for other 
all-cargo operations under the existing Twelve-Five Standard Security 
Program, would be enhanced. DHS also proposes to extend security threat 
assessments, or focused background checks, to air cargo industry 
workers who handle air cargo but do not operate within a secure area. 
Currently, these workers are not screened, leaving the possibility that 
they could introduce weapons, explosives, or individuals into the air 
cargo system. For similar reasons, we also propose to extend Secure 
Identification Display Area requirements at airports that have these 
areas under Sec.  1544.205 to cargo operation areas not covered by the 
current language of this regulation. We also seek to ensure persons 
traveling on all-cargo aircraft are screened to ensure they do not pose 
a threat to the aircraft. Finally the draft regulation would bolster 
the requirements imposed on indirect air carriers in recognition of the 
fact that vulnerabilities within their operations could lead to the 
introduction of weapons, explosives, or individuals who may jeopardize 
the security of aircraft. None of these measures is currently covered 
under existing TSA or other agency regulations.
    CBP has issued regulations governing international air cargo, but 
the CBP regulations have a different purpose than these proposed 
regulations. As a result, there is no redundancy in the two programs. 
Internationally, CBP requires aircraft operators to report cargo 
manifest data in advance of arrival into the United States under 19 CFR 
4.7-7a. This requirement, however, may be fulfilled at the time the 
aircraft is already flying to the United States, when it may be too 
late to prevent an incident that would destroy the aircraft and 
potential ground-level targets. TSA and CBP are currently engaged in 
efforts to leverage their respective regulatory programs to further 
militate against an act of terrorism through air cargo. While CBP also 
has other security-focused regulations, the CBP mission and statutory 
authority concentrates on preventing the entry of high-risk goods from 
entering the United States upon arrival at the border. These CBP 
regulations do not govern the security requirements that air carriers 
must implement in order to prevent the introduction of explosives or 
operatives as cargo moves through the supply chain and onto aircraft 
for flight. TSA regulations and proposed amendments address this 
different security threat.

II. Efforts Leading to the Development of This NPRM

    This NPRM is the result of more than a year of industry 
consultation, strategic planning and interagency coordination by TSA 
and DHS. The foundation of the policy changes recommended here are 
TSA's consultations with industry through its Aviation Security 
Advisory Committee (ASAC), the development of the DHS/TSA Air Cargo 
Strategic Plan, and coordination within the Department of Homeland 
Security.

A. The Aviation Security Advisory Committee

    The Aviation Security Advisory Committee, a standing committee 
organized under the Federal Advisory Committee Act, was created in 
1989, in the wake of the crash of Pan Am 103 over Lockerbie, Scotland, 
to provide the federal government with expert consultation on aviation 
security issues. Previously managed by the FAA, ASAC is now managed by 
TSA. ASAC is composed of 27 organizations with a stake in securing the 
aviation sector; members include groups representing victims and 
survivors of terrorist acts, freight forwarders, aircraft owners, 
airports, aircraft manufacturers, representatives of passenger and 
cargo airline management and labor, and representatives of key federal 
government agencies.
    In April 2003, ASAC established three Air Cargo Security working 
groups: Shipper Acceptance Procedures (which focused on known shipper 
and other screening protocols), Indirect Air Carrier Security and 
Compliance, and Securing the All-Cargo Aircraft. ASAC working group 
members consisted of representatives from the following organizations 
and agencies, listed alphabetically: Air Courier Conference of America; 
Air Forwarders Association; Air France; Air Line Pilots Association; 
Air Transport Association; Airport Law Enforcement Action Network; 
Airports Council International--North America; Allied Pilots 
Association; American Association of Airport Executives; American 
Trucking Association; Association of Flight Attendants; Aviation 
Consumer Action Project; British Airways; Cargo Airline Association; 
Coalition of Airline Pilots Association; Federal Aviation 
Administration; Federal Bureau of Investigation; International Air 
Transport Association; Lufthansa; National Air Carrier Association; 
National Customs Brokers and Forwarders Association of America; 
National Industrial Transportation League; Regional Airline 
Association; Transportation Intermediaries Association; U.S. Customs 
and Border Protection; U.S. Department of Transportation--Office of the 
Secretary; U.S. Department of State; U.S. Postal Service; and Victims 
of Pan Am Flight 103.
    On October 1, 2003, ASAC presented TSA with its final report on air 
cargo security, which included 42 recommendations covering 22 topical 
areas.\7\ The working group's recommendations included strengthening 
the known shipper program by improving technology links between 
aircraft operators and the federal government, leveraging new 
technology to create a more layered cargo security approach, augmenting 
requirements to achieve known shipper status, strengthening the 
Indirect Air Carrier Standard Security Program (IACSSP) and securing 
the all-cargo aircraft operating area. The recommendations from the 
consensus report are reflected throughout this NPRM.
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    \7\ the ASAC report is protected at Sensitive Security 
Information under 49 CFR part 1520.
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B. Air Cargo Security Strategic Plan

    While the ASAC working groups were completing their independent 
assessments of air cargo security, TSA was developing an extensive 
strategic plan for securing air cargo (Air Cargo Strategic Plan). The 
Air Cargo Strategic Plan, which was completed in November 2003, and 
approved by the Department of Homeland Security in January 2004, 
evaluated TSA's and others' analyses of air cargo security, including 
the ASAC report. Based on these evaluations, the Air Cargo Strategic 
Plan details a threat-based, risk-managed program for securing the air 
cargo transportation system. The Air Cargo Strategic Plan contains a 
vision to ensure that TSA has adequately considered the security of air 
cargo operations. It identifies priority actions based on risk, cost, 
deadlines, performance, research and technology initiatives, and 
coordinated stakeholder outreach efforts. The Air Cargo Strategic Plan 
focuses on a multi-layered approach to security.
    The Air Cargo Strategic Plan contains sensitive security 
information (SSI); therefore, its contents cannot be

[[Page 65261]]

disclosed to the public.\8\ In summary, it prescribes TSA's mission in 
the area of air cargo: providing the most effective security program 
possible while maintaining effective stewardship of resources and not 
unduly impeding the flow of commerce. The plan is multimodal, ensures 
that TSA has adequately considered the expanse of the air cargo 
security domain, and details a program for denying terrorists the 
opportunity to exploit that system. It identifies priority actions 
based on risk, cost, deadlines, performance, research and technology 
initiatives, and coordinated stakeholder outreach efforts in four 
strategic components: enhancing shipper and supply chain security, 
identifying elevated risk cargo through prescreening, identifying 
technology for performing targeted air cargo inspections, and securing 
all-cargo aircraft through appropriate facility security measures.
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    \8\ SSI is information obtained or developed in the conduct of 
security activities, including research and development, the 
disclosure of which TSA has determined would: constitute an 
unwarranted invasion of privacy; reveal trade secrets or privileged 
or confidential information obtained from any person; or be 
detrimental to transportation security. 49 CFR 1520.5(a)(1-3); 69 FR 
28066, 28082-28083 (May 18, 2004).
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    This NPRM proposes to implement many of the provisions of the Air 
Cargo Strategic Plan and ensures that the appropriate regulatory 
framework exists for additional measures that are not regulatory in 
nature. In addition to regulatory changes, aspects of the Air Cargo 
Strategic Plan will be implemented through security program updates, 
SDs and EAs, research and development programs, and public-private 
cooperative endeavors.

C. TSA-CBP Air Cargo Coordination

    Since its establishment in November 2002 by the Homeland Security 
Act of 2002 (Pub. L. 107-296), the Department of Homeland Security has 
had, as one of its central tenets, the goals to reduce redundancy and 
improve effectiveness. This priority has particularly been the case in 
the area of air cargo security. Shortly after their transfer to the 
DHS, TSA and the U.S. Customs and Border Protection (formerly, the 
United States Customs Service) initiated an interagency program to 
leverage resources, eliminate unnecessary duplication and ensure 
compatibility between their respective air cargo security programs. The 
goal of this endeavor is to ensure that DHS has a comprehensive, 
coordinated policy for securing air cargo entering, transiting within 
and departing the United States. This NPRM complements CBP's programs, 
including the following primary coordination areas: the TSA known 
shipper program in conjunction with Customs-Trade Partnership Against 
Terrorism (C-TPAT); targeting, risk assessment, and compliance 
measurement; technology research and development; and explosives 
detection canine programs. This interagency coordination is 
instrumental to the implementation of TSA's layered approach to air 
cargo security and to many of the systems and processes that will 
support the regulatory changes proposed in this NPRM, and coincides 
with a Congressional mandate in the conference report accompanying the 
DHS appropriations act (H.R. Conf. Report No. 108-280 (2004) (``Air 
Cargo Report'')) that directed TSA to consider testing the expansion of 
C-TPAT to the domestic air cargo supply chain.

III. Summary of This Rulemaking

    As explained further in section IV, this NPRM would enhance 
aviation cargo security significantly by requiring a number of 
measures. The NPRM would create a mandatory security program for all-
cargo aircraft operations over 45,500 kg (100,309.3 pounds) and would 
amend existing security regulations and programs for other aircraft 
operators, foreign air carriers, airport operators, and IACs. The 
current rules for cargo carried on certain passenger aircraft, and for 
all-cargo operations under the existing Twelve-Five Standard Security 
Program \9\ would be enhanced. Existing screening requirements for 
aircraft operators would be extended to cover all-cargo operations. 
Airports or aircraft operators would be required to secure the cargo 
operations areas. The definition of ``Indirect Air Carrier'' included 
in 49 CFR 1540.5 would be amended to include those transporting goods 
via all-cargo aircraft and all IACs would be subject to a more thorough 
vetting by TSA prior to receiving authorization to operate.
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    \9\ See discussions of Twelve-Five Standard Security Program at 
III.C. and IV.G.
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    This NPRM also would require Security Threat Assessments for 
individuals who have unescorted access to cargo carried by certain 
aircraft operators, foreign air carriers, and IACs.
    TSA is proposing these amendments after extensive consultation with 
industry through its Aviation Security Advisory Committee, and with 
other Federal agencies including the Department of Transportation and 
U.S. Customs and Border Protection. These amendments would 
significantly enhance aviation cargo security.

A. Who Is Affected by This NPRM?

    TSA regulates four segments of the air cargo industry: (1) Airports 
serving cargo operations; (2) passenger aircraft operators that 
transport cargo; (3) all-cargo aircraft operators; and (4) IACs. Each 
segment is currently required to implement some type of TSA cargo 
security program. The current regulatory regime covers domestic 
entities in these four categories as well as foreign air carriers that 
operate into or out of the United States. The proposals in this NPRM 
would amend current security requirements for all of these industry 
segments, both through direct regulatory changes and through 
anticipated related security program changes.

B. Why Are These Regulatory Changes Necessary?

    TSA has identified two critical risks in the air cargo environment: 
(1) The hostile takeover of an all-cargo aircraft leading to its use as 
a weapon; and (2) the use of cargo to introduce an explosive device 
onboard a passenger aircraft in order to cause catastrophic damage. The 
magnitude of these risks is determined by factoring in the presence of 
credible threats and the existence of possible vulnerabilities that a 
terrorist could exploit. Many steps taken since September 11, 2001 have 
reduced the capabilities of international terrorist organizations; 
however, the terrorist threat remains. Likewise, new aviation security 
requirements have reduced the vulnerability of the air cargo system. 
Nonetheless, TSA, in cooperation with its many partners in the air 
cargo transportation industry, has identified additional enhancements 
of air cargo security to reduce further the likelihood of cargo 
tampering or unauthorized access to the aircraft with malicious intent. 
This NPRM addresses the remaining vulnerabilities in the air cargo 
system. TSA invites public comment on whether these concerns are 
appropriately addressed and adequately accounted for in this NPRM.
    Terrorists have attempted to use air cargo to attack U.S. passenger 
aircraft on occasions in the past, and aviation generally continues to 
be a priority target for terrorists. The threat to air cargo represents 
a meaningful risk. TSA believes that strengthening air cargo security 
requirements through this proposed rulemaking will mitigate the 
threats.

C. How Did TSA Enhance Cargo Security After September 11, 2001?

    Federal air cargo security requirements date back to the 1970's and 
have since evolved. Since

[[Page 65262]]

September 11, 2001, the Federal Government has moved expeditiously to 
strengthen air cargo security even further. Immediately after September 
11, FAA prohibited the shipment of all cargo aboard passenger aircraft. 
Later, this restriction was partially lifted to allow cargo from known 
shippers to be transported on passenger aircraft operators, but not 
cargo from unknown shippers.\10\ By limiting air cargo aboard 
commercial passenger aircraft to known shippers only, FAA reduced the 
likelihood that cargo would pose a security threat to passenger 
aircraft. Since its creation, TSA has also taken several emergency 
measures to strengthen existing requirements, including additional 
qualifying requirements for the known shipper program.\11\
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    \10\ See Section IV. G.
    \11\ The specific criteria for the known shipper program are SSI 
under 49 CFR part 1520.
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    In the all-cargo aircraft environment, several all-cargo aircraft 
operators have voluntarily adopted the TSA Domestic Security 
Integration Program (DSIP) \12\ to transfer cargo to passenger aircraft 
operators and to apply security identification display area (SIDA) 
requirements to all-cargo operations. The DSIP has been in place since 
1992. FAA also strengthened the requirements for IACs immediately after 
September 11 by requiring additional steps to achieve IAC status. On 
February 22, 2002, TSA implemented the security program for Aircraft 
12,500 Pounds or More, which became effective April 1, 2002 and applies 
to operators of aircraft with Maximum Certificated Take Off Weight 
(MTOW) more than 12,500 pounds in scheduled or charter service that are 
carrying passengers, cargo, or both and are not otherwise required to 
have a full or partial security program.\13\ The rule also requires the 
pilot, flight engineer, or flight navigator assigned to duty during 
flight time on all regulated aircraft operators to have successfully 
completed a fingerprint-based criminal history records check (CHRC). It 
calls for restricted access to the flight deck if the aircraft has a 
flight deck door, and it mandates use of security coordinators, 
security training, procedures for bomb threats, and contingency plans.
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    \12\ The DSIP is a limited program under 49 CFR 1544.101(g). TSA 
has made this program available to all-cargo aircraft operators, in 
part, to allow those entities to interline cargo with passenger 
aircraft operations.
    \13\ 67 FR 8205 (Feb. 22, 2002).
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    In June 2002, TSA completed an extensive Air Cargo Security 
Scenario Analysis. The specific contents of this report are sensitive 
security information, and accordingly not publicly releasable. Where 
available, actual data were used for calculations; where data were not 
obtainable, estimates were identified and used. The analysis examined 
various scenarios, which focused on varying degrees of cargo screening, 
and which were selected to prevent or deter the introduction of 
explosive devices into the cargo holds of passenger aircraft. It was 
the first known attempt to conceptualize and conduct a detailed 
examination of the different security regimes, measure implementation 
costs and assumptions, and account for potential responses of the 
industry to the security changes, including the potential costs of 
implementation. The scenarios and variants ranged from screening 
unknown shipper cargo to screening cargo on passenger aircraft or 
preventing any cargo from being transported on passenger aircraft. The 
various scenarios were compared in terms of costs, benefits, and 
effectiveness.
    TSA also has enhanced cargo security by implementing a web-enabled 
Known Shipper database to centralize data on persons and businesses 
that are authorized to ship air cargo on passenger aircraft to allow 
quick and efficient verification of a shipper's status while reducing 
redundancy. The initial version of the database was deployed in the 
Fall of 2002 and is currently being used by aircraft operators and IACs 
on a voluntary basis. Most of the major airlines, and 400 IACs, are 
participating. The database already consists of over 400,000 known 
shippers. In the near future, TSA plans to make use of the system 
mandatory for all aircraft operators, foreign air carriers and IACs 
required to participate in the known shipper program. This proposed 
rule would provide authority for this planned change, which would be 
implemented in the security programs of the aircraft operators, foreign 
air carriers and IACs.
    At the core of this endeavor, the Known Shipper database will allow 
aircraft operators, foreign air carriers and IACs to submit 
electronically information on their known shippers to TSA and to verify 
electronically whether a client has been approved with known status 
under the program. This effort will offer a number of benefits, both 
for facilitating trade and improving security. Persons and businesses 
seeking Known Shipper status will no longer have to obtain this status 
from every aircraft operator, foreign air carrier or IAC with whom they 
do business; instead, once a shipper is accepted into the database, 
they will be considered known to all aircraft operators, foreign air 
carriers and IACs with access.
    In November 2003, TSA required U.S. aircraft operators, foreign air 
carriers, and IACs to carry out certain additional security measures 
with respect to cargo. The U.S. intelligence community continued to 
receive and evaluate a high volume of reports indicating possible 
threats against U.S. interests. These reports, combined with recent 
terrorist attacks, created an atmosphere of concern. Terrorist groups 
such as Al Qaeda are capable of sophisticated tactics. The Department 
of Homeland Security was concerned about Al-Qaeda's continued interest 
in aviation, including using cargo aircraft to carry out attacks on 
critical infrastructure. In recognition of this threat, TSA made a 
determination that these circumstances required immediate action to 
ensure safety in air transportation. The additional measures TSA 
required in response to those concerns are described in IV. A.

D. What Would This Proposed Rulemaking Do To Strengthen the Current Air 
Cargo Security Regulatory Regime?

    TSA is implementing a layered security solution throughout the 
life-cycle of the air cargo shipment and the aircraft on which it is 
being transported. As discussed in more detail in section IV. of this 
NPRM, TSA proposes to:
    <bullet> Require security threat assessments for individuals with 
unescorted access to cargo;
    <bullet> Codify cargo screening requirements first implemented 
under SDs, EAs, and part 1550 programs issued in November 2003;
    <bullet> Require airports with SIDAs to extend them to cargo 
operating areas;
    <bullet> Require aircraft operators to prevent unauthorized access 
to the operational area of the aircraft while loading and unloading 
cargo;
    <bullet> Require aircraft operators under a full or all-cargo 
program to accept cargo only from an entity with a comparable security 
program or directly from the shipper;
    <bullet> Codify and further strengthen the Known Shipper program;
    <bullet> Establish a security program specific to aircraft 
operators in all-cargo operations with aircraft with a maximum 
certificated takeoff weight more than 45,500 kg;
    <bullet> Strengthen foreign air carrier security requirements 
essentially to parallel the requirements on U.S. aircraft operators; 
and
    <bullet> Enhance security requirements for Indirect Air Carriers.

[[Page 65263]]

    TSA's proposed security requirements are infused throughout the 
supply chain instead of concentrating all efforts on one measure, such 
as physical inspection, at a single stage potentially resulting in 
significant disruption of the supply chain. This NPRM is a central 
component of this solution and proposes updating the requirements 
applicable to airports, aircraft operators, IACs, and foreign air 
carriers currently operating under a security program, and instituting 
new security requirements for all-cargo aircraft operators and the 
freight forwarders servicing them.

E. How Will TSA Enforce Compliance?

    TSA relies on its staff of field inspectors to enforce compliance 
among regulated parties. As noted in various sections above, TSA also 
believes that issuance of a voluntary disclosure program, development 
and distribution of security training materials for certain IAC 
employees and agents, and implementation of enhanced electronic 
communication capabilities will materially enhance the regulated 
parties' compliance ability and orientation.
    The ASAC working groups recommended that TSA implement a voluntary 
disclosure program to facilitate and improve compliance by regulated 
parties. TSA has received numerous similar requests from regulated 
parties. TSA agrees that aviation security is promoted by creating 
incentives for regulated entities to identify, disclose and correct 
their own instances of non-compliance, and to invest in efforts to 
preclude their recurrence. As a result, in December 2003, TSA 
implemented a voluntary disclosure program. Details of the program are 
available via the Internet on the TSA Web site at http://www.tsa.gov, 
with a link titled ``TSA Announces Civil Enforcement Policies'' in the 
section on Law & Policy. TSA's program is designed to encourage 
compliance with TSA regulations, foster secure practices, and encourage 
the development of internal evaluation programs. Upon detecting an 
inadvertent violation not yet known to TSA, a regulated entity must 
take immediate action to correct the violation. The regulated entity 
must report the violation to TSA in writing within 24 hours of 
detection and submit a detailed written report within 10 calendar days 
of the initial reporting. The regulated entity must develop a 
corrective action plan to ensure that the noncompliance remains 
corrected. After the regulated entity takes these steps, TSA may issue 
a letter of correction instead of a civil penalty action for the 
violation, provided all other elements of the policy are met. This 
program has been issued in a separate action and is not part of this 
rulemaking proposal.

F. Did TSA Consider Recommended Changes?

    Yes, in addition to its own assessments, TSA based the policy 
changes proposed in this NPRM on recommendations received from the 
Department of Transportation Office of Inspector General (OIG), the 
General Accounting Office (GAO), and the Aviation Security Advisory 
Committee (ASAC). In addition, TSA has coordinated its efforts with 
other agencies in the Department of Homeland Security, including the 
U.S. Customs and Border Protection, which has statutory authority for 
screening cargo entering and departing the United States.
    The Department of Transportation Office of Inspector General 
completed its audit of the air cargo security program in September 
2002. This report is SSI. Accordingly, its distribution is restricted. 
In the report, the OIG offered 14 specific recommendations to increase 
the level of security as to ``insiders''--namely employees of aircraft 
operators and IACs with access to cargo. These recommendations varied 
from increasing the vetting of IACs seeking approval of their security 
program to training and testing requirements to improved compliance 
enforcement.
    Further, in December 2002, the GAO issued its report, 
``Vulnerabilities and Potential Improvements for the Air Cargo System 
(GAO-03-344).'' GAO traced the implementation of recommendations 
delivered during the 1990's and the development of technologies or 
operational procedures that might be used to enhance air cargo 
security. GAO did not make specific recommendations, but called for TSA 
to develop a comprehensive plan for air cargo security that includes 
priority actions identified on the basis of risk, costs, deadlines for 
completing those actions, and performance targets. TSA completed this 
strategic plan in November 2003. As noted previously, this document 
includes SSI and is not available to the public.
    As previously discussed, TSA also considered the ASAC consensus 
report transmitted on October 1, 2003.

G. Were Other Solutions Considered and Why Were the Proposals in the 
NPRM Chosen Over Others?

    TSA recognizes that the air cargo industry is large and complex, 
composed of numerous shippers, 226 domestic and foreign aircraft 
operators providing services through 2,789 stations at U.S. airports, 
and approximately 3,200 IACs with over 10,000 business locations. 
Together these entities transport approximately $30 billion worth of 
goods per year. In recognition of this breadth and complexity, TSA 
considered the full gamut of potential solutions for enhancing air 
cargo security in developing this NPRM. TSA analyzed the existing 
regulatory structure for air cargo security in the United States, 
partnered with industry, reviewed a variety of external assessments of 
the air cargo system, and coordinated with other agencies in the 
Department of Homeland Security with air cargo security experience and 
responsibilities, such as CBP, to develop solutions for today's 
challenges. TSA also reached out to numerous international entities 
including the European Commission, Transport Canada and International 
Air Transport Association to assess best practices and regulatory 
regimes that might be applicable to the U.S. environment.
    The majority of participants in the ASAC air cargo security working 
groups have stated that proposals to require the inspection of every 
piece of cargo shipped on passenger aircraft are impractical. Instead, 
they recommended a risk-based targeting strategy to identify higher 
risk cargo for additional scrutiny; relying, in part, on the Government 
Accounting Office (GAO) report on Vulnerabilities and Potential 
Improvements for the Air Cargo System,\14\ the Department of 
Transportation's Office of the Inspector General (OIG) Audit of the 
Cargo Security Program,\15\ and TSA's Air Cargo Security Scenario 
Analysis. These reports have cautioned that, in the absence of an 
appropriate targeting methodology and data, a requirement for 
inspection of 100% of air cargo would severely burden the just-in-time 
delivery that is currently a key competitive feature of many U.S. 
manufacturing and distribution industries, and could have particularly 
severe negative impacts on aircraft operators, IACs and their employees 
and agents. TSA agrees with this assessment. TSA believes that a 
requirement to inspect every piece of cargo could result in an 
unworkable cost of more than $650 million in the first year of 
implementation.\16\
---------------------------------------------------------------------------

    \14\ GAO-03-344 December 2002.
    \15\ Report Number SC-2002-113 (September 19, 2002). This report 
is SSI.
    \16\ See Regulatory Evaluation for the Air Cargo Security 
Requirements NPRM, Table 1, Ten-Year Undiscounted Cost Summary for 
passenger and all-cargo flight cargo screening.

---------------------------------------------------------------------------

[[Page 65264]]

    In its final presentation to TSA, ASAC noted that the layered 
solution outlined in its forty recommendations would significantly 
enhance air cargo security while ensuring that commerce is not 
disrupted, two goals TSA is committed to achieving. It was the sense of 
the ASAC that technology solutions must be pursued as aggressively as 
possible. Specifically, the committee's recommendations included using 
technology to improve communication links between regulated parties and 
the federal government, leveraging new technology to create a more 
layered cargo security approach, and using technology to enable 
enhanced requirements for achieving Known Shipper status.
    Similarly, TSA reviewed FAA's October 2001 ``Air Cargo Threat 
Assessment'' (DOT/FAA/AR-02/15) analysis of the vulnerabilities of the 
current air cargo security program.\17\ In this report, FAA's overall 
assessment was that an integrated security regime was required. These 
FAA recommendations have been considered and are reflected in portions 
of this NPRM.\18\
---------------------------------------------------------------------------

    \17\ This document is SSI and, accordingly, not publicly 
releasable.
    \18\ This report is protected as Sensitive Security Information 
under 49 CFR part 1520.
---------------------------------------------------------------------------

    The Department of Transportation Office of the Inspector General 
audited the FAA's air cargo security program. The OIG's report of this 
audit and its results, including data sources, are SSI. Like the ASAC 
and FAA, the OIG determined that air cargo security could best be 
bolstered by implementing layered solutions throughout the air cargo 
system; and offered fourteen specific recommendations. TSA concurred 
with the OIG's assessment and these recommendations are reflected in 
both TSA's air cargo strategic plan and in this NPRM.
    TSA will continue to use SDs and EAs as required to address 
immediate threats. These directives are issued to regulated parties 
outlining specific requirements that must be met as part of their 
security programs and are protected as sensitive security information.
    Like TSA, CBP also relies on a layered security program for 
securing air cargo and both agencies are committed to determining how 
best to leverage individual resources and avoid unnecessary redundancy. 
As a result, TSA and CBP have initiated a dialogue for coordinating 
their respective air cargo security activities. TSA and CBP initiated 
this effort shortly after DHS was established and the agencies received 
a Congressional mandate to continue this effort during Fiscal Year 
2004. TSA and CBP are looking closely at how best to apply their 
combined experience in promoting supply chain security, securing cargo 
prior to loading, and applying risk-based targeting programs. In 
addition, through this effort, DHS is committed to ensuring the maximum 
degree of consistency between TSA and CBP programs and minimizing the 
impact on industry by coordinating requirements and procedures.
    Within the BTS Directorate, CBP and TSA have distinct, but equally 
vital, security missions in securing air cargo. Historically, CBP has 
primarily been responsible for determining the admissibility of the 
cargo held on the aircraft and as such is concerned about cargo that 
may carry threats to be deployed once the cargo reaches U.S. borders. 
TSA, on the other hand, is responsible for securing both domestic 
aircraft and foreign flights destined for the United States from 
destruction or hijacking and as a result is primarily concerned with 
the illicit loading of explosives or stowaways on board.
    The priority mission of CBP is to prevent terrorists and terrorist 
weapons from entering the United States. That mission means improving 
security at the nation's physical borders and ports of entry, but it 
also means extending the zone of security beyond our physical borders--
so that American borders are not the first line of defense. With regard 
to the securing of international air cargo, CBP has a long history of 
screening and inspecting cargo upon arrival in the United States. Today 
it continues this challenge with a refined focus on stopping terrorists 
and terrorist weapons at our nation's borders.
    TSA's mission is to provide security in all modes of 
transportation, with a priority emphasis on aviation. Like CBP, TSA 
employs a threat-based, risk-managed approach to securing air cargo. 
Therefore, we focus our efforts in the passenger environment on 
preventing the introduction of explosive devices into the cargo bays of 
passenger air carriers. In the all-cargo environment, while measures 
are taken to prevent the introduction of an explosive device on an all-
cargo aircraft, our primary concern is focused on keeping intruders or 
stowaways off the aircraft, as a hijacking causes significant loss of 
life and other damage on the ground and in the air.
    Extensive interagency analysis and outreach to both industry and 
other federal agencies have led TSA to conclude that a threat based, 
risk managed, layered solution will provide the highest degree of 
security in the air cargo environment while causing the least financial 
and procedural impact on a business sector that contributes 
significantly to the United States and global economies. TSA invites 
public comment on the feasibility of this approach overall, on the 
specific rule changes and requirements proposed in this NPRM, and on 
other possible actions, such as a requirement to inspect 100% of air 
cargo, that have been the subject of public discussion but which TSA, 
for reasons outlined above, has determined not to propose in this NPRM.

IV. Summary of Proposed Amendments

A. Current Regulation of Aircraft Operators and Foreign Air Carriers 
and Proposed Amendments

    TSA regulations currently cover a variety of aircraft operators as 
part of an overall, layered approach to security. Aircraft operators 
with scheduled or public charter passenger operations using aircraft 
with a passenger seating configuration of 61 or more, or those using 
smaller aircraft that enplane passengers from or deplane passengers 
into a sterile area, must have full programs under Sec.  1544.101(a). 
These operators often carry cargo in addition to passengers and must 
comply with cargo security requirements under Sec.  1544.205.
    Aircraft operators using aircraft in scheduled or public charter 
passenger operations using aircraft with a passenger seating 
configuration of 31 or more but 60 or fewer seats must have a partial 
program under Sec.  1544.101(b).
    Aircraft operators using aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more, in scheduled or charter 
service, carrying passengers or cargo or both, must have a twelve-five 
program under Sec.  1544.101(d) & (e).
    Aircraft operators using aircraft in private charter passenger 
operations using aircraft with a passenger seating configuration of 61 
or more or a maximum certificated takeoff weight greater than 45,500 kg 
(100,309.3 pounds) must have a private charter program under Sec.  
1544.101(f), as well as having a twelve-five program.
    This NPRM is proposing to add another type of program. As discussed 
further in this preamble, TSA is proposing that aircraft operators 
operating all-cargo aircraft with a maximum certificated takeoff weight 
of more than 45,500 kg (100,309.3 pounds) have an all-cargo program 
under proposed Sec.  1544.101(h) & (i).
    Certain foreign air carriers must have security programs as well. 
Those with

[[Page 65265]]

scheduled or public charter passenger operations using aircraft with a 
passenger seating configuration of 61 or more, or those using smaller 
aircraft that enplane passengers from or deplane passengers into a 
sterile area (analogous to U.S. operators with full programs), must 
have security programs under Sec.  1546.101(a) or (b). Those in 
scheduled or public charter passenger operations using aircraft with a 
passenger seating configuration of 31 or more but 60 or fewer seats 
must have programs under Sec.  1546.101(d) (analogous to U.S. operators 
with partial programs).
    In addition, in November 2003, in response to threats, TSA required 
foreign air carriers that perform all-cargo operations using aircraft 
with a maximum certificated takeoff weight of 12,500 pounds or more to 
carry out the All-Cargo International Security Procedures issued by 
TSA. 69 FR 3939 (Jan. 27, 2004). In this NPRM, TSA is proposing to 
codify this procedure and to create foreign air carrier security 
programs analogous to a U.S. twelve-five program in all-cargo 
operations and to the proposed all-cargo program in part 1544.
    Additionally, in November 2003, TSA issued SDs and EAs requiring 
domestic aircraft operators under a full program or a twelve-five all-
cargo program and foreign air carriers to apply further screening 
measures to cargo. More specifically, TSA required that these operators 
inspect a percentage of cargo prior to loading it on an aircraft.
    Aircraft operators under a full program must also continue to abide 
by the requirements of the Known Shipper program. Generally, these 
aircraft operators may transport only cargo from a known shipper. 
Congress specified in ATSA, codified at 49 U.S.C. 44901(a), that a 
Federal employee is not required to carry out screening requirements 
for a passenger aircraft operator of the Known Shipper program. These 
screening functions may be performed by the private sector. Likewise at 
44901(a), Congress distinguished that Federal screeners must conduct 
certain passenger screening. Operators of all-cargo aircraft do not 
share this distinction. All-cargo aircraft operators also may perform 
cargo screening; it is not required that a Federal employee carry out 
screening of all-cargo aircraft.
    The security procedures required for the varying programs are 
focused to address the greatest perceived threats to the respective 
operations. Accordingly, TSA requires the most security procedures 
under the layered approach to those operations perceived to have the 
highest threat. For instance, the full program focuses security 
requirements both to protect the large number of passengers on board 
the aircraft as well as to prevent the largest of aircraft from being 
hijacked and used as a missile to attack another target, and thus are 
subject to the most intense security measures. The proposed all-cargo 
program would focus on the latter threat because aircraft operators 
under this proposed program generally use the same types of aircraft as 
those used under a full program. All-cargo operations under the twelve-
five program require layers of security appropriate to the lower 
threats posed by smaller aircraft. TSA has developed a measured 
approach to match security requirements with the possible risks.

B. Security Threat Assessments for Air Cargo Workers

    TSA currently requires a variety of individuals working in aviation 
to submit to a criminal history records check. Generally, these 
individuals work on airport grounds and have access to secure areas.
    In the cargo environment, many other persons have access to cargo 
before someone who works for the airport and has had such a check 
handles it. In this rulemaking, TSA proposes to require additional 
persons who have unescorted access to air cargo, but do not have 
unescorted Security Identification Display Area (SIDA) access, to 
undergo a security check to verify that they do not pose a security 
threat.
    TSA recognizes that the number of individuals with access to cargo 
is large--approximately 63,000--and that the companies that they work 
for run the gamut from complex organizations to ``mom and pop's.'' 
Therefore, requiring all these individuals to undergo fingerprint-based 
criminal history background checks would be a time-consuming and costly 
process. TSA believes that potential security concerns related to 
unescorted access to cargo by these individuals would be best addressed 
at this time by requiring the individuals to submit to a Security 
Threat Assessment program, focused on the threat of terrorism. A 
Security Threat Assessment, as proposed in this NPRM, would rely on 
checks of existing intelligence-based records and databases to ensure 
that an individual who is a known or suspected threat is prohibited 
from working in positions that could allow that individual to have 
unescorted access to air cargo. This program adopts best practices from 
the financial services and transportation security communities to 
reduce the likelihood that a terrorist could gain access to cargo.
    In proposed Sec. Sec.  1544.228, 1546.213, and 1548.15, TSA would 
prohibit aircraft operators under a full program or all-cargo program; 
foreign air carriers operating under Sec. Sec.  1546.101(a) (b) or (e); 
and each IAC from authorizing any individual to have unescorted access 
to cargo unless the respective operator has verified the identity of 
that individual in a manner acceptable to TSA, and that individual has 
successfully completed a CHRC under 49 CFR 1542, 1544, or 1546, 
Security Threat Assessment pursuant to proposed Subpart C of part 1540, 
or another Security Threat Assessment approved by TSA.
    TSA has also considered extending security threat assessment 
requirements in additional contexts. For instance, TSA considered 
requiring every employee of an entity regulated by TSA that is in the 
business of cargo transportation to submit to a security threat 
assessment. TSA proposes that the layered approach of requiring 
assessments for those individuals with unescorted access to cargo, 
combined with requirements to secure cargo upon acceptance, are at this 
time sufficiently focused on the potential security threat.
    TSA also considered requiring each person who boards for 
transportation on an aircraft under an all-cargo security program to 
submit to a security threat assessment. Alternatively, TSA considered 
requiring persons who board an aircraft under an all-cargo security 
program who require prohibited items during the flight to perform their 
duties to submit to the assessment. TSA has not proposed these measures 
but invites comments on these considerations.

C. Security Measures for Persons Boarding an All-Cargo Aircraft

    TSA is proposing to codify requirements for screening persons other 
than passengers boarding the all-cargo aircraft with a maximum 
certificated take-off weight greater than 12,500 pounds. See proposed 
Sec.  1544.202 and Sec.  1546.202. Under FAA rules, some persons who 
are not flight crew members or passengers may travel on an all-cargo 
aircraft, such as handlers escorting an animal being shipped via air 
cargo. See 14 CFR 121.583 and 121.587. Such individuals could be in a 
position to attempt to take over the aircraft. TSA believes that it is 
necessary to screen such persons to ensure that individuals traveling 
on aircraft under an all-cargo program, or under a twelve-five program 
in an all-cargo operation, do not present a security threat. Such 
screening is now being done under SDs issued in November 2003 and is 
included as a proposed regulatory requirement in this NPRM. While

[[Page 65266]]

Congress specified in 49 U.S.C. 44901(a) that a Federal employee must 
conduct screening of persons in passenger operations, section 44901(f) 
has no such requirement for all-cargo operations. Accordingly, the 
private sector may conduct screening in all-cargo operations in 
compliance with TSA standards.

D. Screening Cargo

    To guard against unauthorized weapons, explosives, persons, and 
other destructive substances or items in cargo, TSA proposes to codify 
a requirement for aircraft operators to inspect a portion of air cargo, 
including that offered by known shippers. See proposed Sec. Sec.  
1544.205 and 1546.205. An SD issued to operators with full programs in 
November 2003 requires that a portion of known shipper cargo be 
inspected, and this NPRM would codify that change. In addition, an SD 
issued requires operators of Twelve-Five all-cargo aircraft inspect a 
portion of cargo. When conducting inspections, aircraft operators are 
required to follow TSA-approved requirements.
    In addition, aircraft operators operating under full programs are 
currently required to submit individuals conducting cargo screening to 
a fingerprint-based CHRC under Sec.  1544.229 to reduce the likelihood 
that a terrorist could gain such employment to facilitate the 
introduction of unauthorized persons, explosives, incendiaries, and 
other substances or items. This proposed rule would also require 
aircraft operators operating under all-cargo programs to submit their 
cargo screeners to a CHRC under Sec.  1544.229, mitigating the 
possibility that an authorized person would threaten or otherwise 
compromise the security of the aircraft operations.
    TSA considered several other requirements for cargo screening that 
are not included in this NPRM. For instance, TSA considered prohibiting 
all cargo from transportation on passenger aircraft. TSA recognizes, 
however, that this requirement would likely lead to significant 
economic impact on passenger operations. Moreover, TSA proposes that a 
layered approach to security requirements, including those proposed in 
this NPRM, would provide for an appropriate level of security and could 
be implemented without undue hardship on the affected stakeholders. TSA 
also considered requiring physical inspection of 100% of all cargo on 
all aircraft, or alternatively on passenger aircraft. However, as noted 
in III.G. above, 100% inspection of cargo would be impractical and 
would severely impact the rapid delivery of air cargo. TSA invites 
comment on these considerations.

E. Securing the Cargo Operating Environment

    Measures to prevent unauthorized individuals from gaining access to 
the cargo operations area are necessary to prevent tampering with the 
aircraft or the cargo and to remove a potential access point for 
stowaways. Currently, at airports that have complete programs under 49 
CFR 1542, and therefore are required to have a SIDA based on the 
presence of covered passenger operations, all individuals working in 
the SIDA must have an airport-approved photo identification (ID) media 
that meets standards established by TSA. This ID must be displayed at 
all times above the waist on the individual's outermost garments. To 
obtain a SIDA ID, a person must successfully undergo a fingerprint-
based CHRC and successfully complete training in accordance with the 
airport's security program (see 49 CFR 1542.205, 1542.211, and 
1542.213). In addition, procedures must be in place for challenging all 
persons not displaying appropriate ID for the area in which they are 
found. Currently, all-cargo operations are not specifically covered 
under airport SIDA requirements.
    At airports that are required to have a SIDA because of the 
presence of covered passenger operations, TSA proposes in this NPRM to 
extend SIDA requirements to cargo operating areas. See proposed Sec.  
1542.205. As previously discussed, the potential consequences of an 
all-cargo aircraft being hijacked and used as a missile to attack 
another target are comparable to the consequences of a hijacking of a 
passenger aircraft of the same size. Accordingly, TSA proposes to add a 
layer of security to protect these aircraft further by applying SIDA 
requirements in cargo operating areas. Airports that currently have 
SIDA have the associated procedures and requirements in place. TSA 
believes that airports that have SIDA will be able to extend SIDAs to 
areas where cargo is loaded and unloaded without great challenges. 
Indeed, the cargo operation areas at many of these airports already are 
SIDAs. TSA also considered extending SIDA requirements to airports that 
serve all-cargo carriers and are not currently required to have a SIDA. 
Airports without SIDAs, however, would be required to implement many 
unfamiliar requirements in order to create SIDA. These airports also 
may have only occasional and unpredictable all-cargo aircraft traffic, 
such as on-demand charter operations. In this NPRM, TSA proposes that 
aircraft operators implement other measures that will enhance security 
instead of requiring airports without SIDAs to create them. 
Accordingly, TSA proposes in Sec.  1544.225 to require that the 
aircraft operator prevent unauthorized access to the operational area 
of the aircraft while loading or unloading cargo. Note that aircraft 
operators now must comply with Sec.  1544.217, which requires covered 
aircraft operators to arrange for a law enforcement presence to respond 
to any situations that may arise. TSA believes that the aircraft 
operator is well positioned to provide sufficient security for their 
aircraft operations, in lieu of an airport SIDA. TSA invites public 
comment on the economic, operational, and security implications of this 
approach. TSA also proposes to require that, before placing an all-
cargo aircraft back into service after a period spent unattended, the 
aircraft operator conduct a security inspection of the aircraft. See 
proposed Sec.  1544.225 and Sec.  1546.103(a)(1). Together, these 
provisions would reduce the likelihood of successful tampering, 
stowaway boarding, or the introduction of an improvised explosive 
device or other destructive substance or item. Similar provisions are 
currently required of passenger aircraft operators operating aircraft 
of the same size.

F. Accepting Cargo From Comparable Entities

    TSA is proposing to authorize aircraft operators under full or all-
cargo programs to accept cargo only from the shipper, or from an entity 
with a security program comparable to the aircraft operator's. See 
proposed Sec.  1544.205(e) and Sec.  1546.205(e). The purpose of this 
proposed amendment is to prohibit aircraft operators from carrying 
cargo transferred from persons or businesses without the appropriate 
security measures to guard against the introduction of unauthorized 
weapons, explosives, persons, or other destructive substances or items. 
TSA will provide these aircraft operators in their security programs 
with a more detailed account of what cargo may be accepted.

G. Known Shipper Program

    TSA proposes to codify and strengthen the Known Shipper program in 
regulation at 49 CFR 1544.239, 1546.215, and 1548.17. As discussed 
above in section III., paragraph C., ``How did TSA enhance cargo 
security after September 11, 2001?,'' the Known Shipper program is a 
protocol to distinguish shippers about whom security-relevant 
information is known from those shippers about whom the aircraft 
operator has inadequate

[[Page 65267]]

information. This program applies to aircraft operators with full 
programs, corresponding foreign air carriers, and IACs that offer cargo 
to such aircraft operators and foreign air carriers.
    TSA considered extending a regulatory program directly to shippers 
of cargo that intend to use air transportation. By doing so, TSA would 
have direct oversight and regulatory authority throughout the cargo 
supply chain. The number of potential shippers, however, may be 
unwieldy. Potentially any person or business may ship cargo by air. TSA 
proposes, instead, to focus on aircraft operators and IACs as discussed 
through this NPRM.
    Certain operational elements of the Known Shipper program are 
sensitive security information and cannot be divulged. However, the 
existence of the program is a matter of public record. Congress 
recognized the existence of the Known Shipper program in the Aviation 
and Transportation Security Act, Pub. L. 107-71, at section 110. Since 
September 11, 2001, cargo from unknown shippers has not been permitted 
to be transported aboard aircraft operated under a full program.
    TSA considered allowing unknown shipper cargo on passenger aircraft 
after physical inspection. TSA recognizes that this cargo could provide 
considerable business opportunity to aircraft operators, but determined 
that this measure could not assure adequate security. No single 
technology currently exists with sufficient versatility to handle the 
vast array of cargo sizes, shapes, and materials to ensure security 
while maintaining acceptable throughput, or processing time. TSA 
welcomes comments and recommendations on this issue.
    Although the Known Shipper program has been in existence for over 
10 years in its current form and has its roots in security programs 
that date back to 1976, it has not previously been identified in 
security regulations; rather, it has been in the aircraft operator 
security programs. TSA is proposing to codify and enhance the Known 
Shipper program in this NPRM.
    TSA will consider, but TSA is not proposing to allow cargo 
submitted by unknown shippers to be transported on passenger aircraft 
under a full program at this time. TSA invites public comment on the 
costs, benefits and practical implications associated with screening 
cargo from unknown shippers to the degree necessary to permit it to be 
transported on commercial passenger aircraft.
    As discussed in III.C. above, TSA is implementing a comprehensive 
strengthening of the Known Shipper program. These improvements 
centralize and automate the vetting of applicants to the Known Shipper 
program. Under this NPRM, when proposing a shipper for the Known 
Shipper program, an aircraft operator, foreign air carrier, or IAC 
would be required to submit an application electronically to TSA for 
vetting against terrorist and law enforcement data. This information 
will then be stored in a central database along with the shipper's 
status in the program. Aircraft operators, foreign air carriers, and 
IACs would be required to check a shipper's status on the system before 
accepting its cargo for transport on passenger aircraft. This proposed 
requirement will enable TSA to conduct a thorough threat assessment of 
those seeking to ship by passenger aircraft.
    To assist in implementing the enhancements to the Known Shipper 
program, TSA proposes in this NPRM that, when TSA so requires, the 
aircraft operators, foreign air carriers, and IACs will submit known 
shipper information electronically and update it as needed. TSA has 
designed its known shipper database, including the necessary Internet 
elements, to ensure that shipper lists are not compromised. TSA 
believes that the proposed changes would facilitate industry 
participation in the Known Shipper program by reducing the 
administrative burden on individual aircraft operators.

H. Establish All-Cargo Operator Standard Security Program

    Aircraft operators using passenger aircraft with a passenger 
seating configuration of sixty-one seats or more in scheduled or public 
charter service must have a full program under 49 CFR 1544.101(a), 
using the Aircraft Operator Standard Security Program (AOSSP). Aircraft 
operators using passenger aircraft that have a maximum certificated 
takeoff weight greater than 45,500 kg (100,309.3 pounds), or a 
passenger-seating configuration of 61 or more, that are not government 
charters or in private charter service, must have a program under 49 
CFR 1544.101(f). Currently, however, all-cargo aircraft operators 
operating aircraft of a similar size and potential destructive power 
are subject to the Twelve-Five program, rather than the full program. 
These operators are currently required to implement security programs 
in accordance with TSA's Twelve-Five Standard Security Program 
governing aircraft with a maximum take off weight of 12,500 pounds or 
more. In addition, some cargo operators voluntarily participate in the 
more comprehensive DSIP. Considering the potential risks associated 
with heavier all-cargo aircraft, TSA proposes to require additional 
steps for securing all-cargo aircraft weighing more than 45,500 kg 
(100,309.3 pounds) at Sec.  1544.101(h). These measures would be 
incorporated into a mandatory All-Cargo Aircraft Operator Standard 
Security Program. The program will include elements of the DSIP.
    Extending pertinent requirements to all-cargo aircraft operators 
operating above the 45,500 kg threshold would institute security 
measures for all-cargo aircraft comparable to passenger aircraft of the 
same size. An all-cargo aircraft with maximum certificated takeoff 
weight greater than 45,500 kg could cause significant damage if taken 
over and used as a weapon. TSA also applies this applicability 
threshold in the private charter program,\19\ 49 CFR 1544.101(f), and 
it is consistent with international security standards adopted by the 
International Civil Aviation Organization.\20\
---------------------------------------------------------------------------

    \19\ 67 FR 41635, 41637 (June 19, 2002).
    \20\ 67 FR 79881, 79883 (December 31, 2002).
---------------------------------------------------------------------------

    TSA recognizes that the operations of all-cargo aircraft operators 
and passenger aircraft operators are not identical and looks forward to 
working with industry to ensure that proposed new requirements are 
tailored to accommodate those differences.

I. Strengthen Foreign Aircraft Operator Security Measures

    TSA currently requires foreign air carriers using aircraft of a 
certain size and engaged in scheduled or public charter passenger 
operations and landing or taking off in the United States to have a 
TSA-approved security program. Foreign all-cargo air carriers are 
subject to certain security requirements identified in a security 
program issued by TSA under part 1550 in November 2003, including 
random inspection of cargo. See 69 FR 3939 (Jan. 27, 2004). TSA is 
proposing to amend Sec.  1546.101 to make these requirements permanent 
and incorporate them into the foreign air carrier regulations in 
recognition that these measures were implemented on an emergency basis 
and should now be available for public comment as part of this 
rulemaking.
    TSA proposes to extend to foreign all-cargo air carriers 
requirements to implement a level of security similar to that of U.S. 
aircraft operators using the same size aircraft. Under the proposed 
amendment to Sec.  1546.101, foreign air carriers would be required to 
adopt and implement a security program acceptable to TSA for all 
flights using an

[[Page 65268]]

all-cargo aircraft with a maximum certificated takeoff weight of more 
than 45,500 kg that land or take off in the United States. This 
security program would essentially parallel the requirements of the 
proposed all-cargo program for U.S. aircraft operators. This NPRM also 
proposes that foreign air carriers in all-cargo operations with 
aircraft over 12,500 pounds and up to 45,500 kg also implement security 
programs. This security program would essentially parallel the 
requirements of the Twelve-Five Standard Security Program for U.S. 
aircraft operators. The remaining proposed amendments would require 
foreign air carrier security programs to provide a level of security 
similar to that required of U.S. aircraft operators serving the same 
airport and employ equivalent procedures. These procedures include 
application of security measures to persons and property on board the 
airplane under proposed Sec.  1546.202, measures for acceptance and 
screening of cargo under proposed Sec.  1546.205, introduction of 
security threat assessments for cargo personnel in the United States 
under proposed Sec.  1546.213, and application of Known Shipper program 
requirements under proposed Sec.  1546.215.

J. Enhancing Existing Requirements for IACs

    The IAC, sometimes called a freight forwarder, is a crucial part of 
the air cargo system, acting as an intermediary between the shipper and 
the aircraft operator for approximately 80% of all air cargo shipped on 
passenger aircraft in the United States. TSA estimates that there are 
3,200 entities in the United States operating as IACs ranging from 
large corporations to sole proprietors working out of their homes. All 
IACs are required to maintain a security program known as the IACSSP 
and are regulated under 49 CFR 1548. This NPRM proposes to expand the 
definition of IAC to include businesses engaged in the indirect 
transport of cargo on larger commercial aircraft, regardless of whether 
the operation is conducted with a passenger aircraft or an all-cargo 
aircraft.
    In addition, TSA plans to strengthen security requirements for all 
IACs. Specifically, TSA proposes to vet businesses more thoroughly 
before they are authorized to do business as IACs, strengthen a 
requirement for periodic recertification of IAC status, and strengthen 
security requirements for accepting and processing air cargo. These 
amendments to the rules governing IAC operations are intended to 
improve the security of the air cargo supply chain by infusing better 
security during the period between when a package leaves a shipper and 
when it is presented to the aircraft operator.
    A key element of TSA's proposed enhanced IAC standard security 
program is a more thorough vetting of entities seeking authority to do 
business as IACs. To strengthen the application process, TSA is 
developing a web-based, centralized system for validating and 
revalidating IACs. This system will improve security through an 
enhanced, more effective vetting process while facilitating the 
application, renewal and review process for the industry.
    Upon implementation of the Internet-based system, TSA proposes, 
under Sec.  1548.7, to require all businesses to use the system to 
obtain initial IAC approval and to renew their approval. In doing so, 
TSA proposes to require IAC applicants to submit more information about 
themselves and their business than is currently required, including 
basic corporate records. IACs would also be required to use the system 
to notify TSA of any changes to their corporate structure and to renew 
their status annually. These two steps will allow TSA to check whether 
the applicant is a legitimate business and determine whether the 
business or personnel poses a threat to transportation security.
    These planned new IAC vetting tools, combined with the 
centralization of information and automated communications, would 
enable TSA to implement effectively a program to remove IAC 
authorization from those persons found to be security risks during 
revalidation or found to be out of compliance. In this NPRM, TSA 
proposes procedures for withdrawing IAC security program approval.
    TSA's envisioned electronic validation/revalidation process is also 
indicative of the DHS commitment to improving security while promoting 
best business practices. By automating much of the current paper-based 
process, TSA would be able to accelerate the validation and 
revalidation process, and industry would have an improved means of 
communication with TSA that facilitates TSA's ability to notify IACs 
and aircraft operators of pending actions.

K. Establishing New Training and Personnel Requirements

    TSA is proposing to add regulatory text to: expand general security 
requirements to include the protection of stored or en route cargo 
under Sec.  1548.9; implement training under Sec.  1548.11; require 
IACs to appoint Security Coordinators under Sec.  1548.13; authorize 
IACs to receive and require IACs to confirm receipt of, and to 
implement SDs and Information Circulars under Sec.  1548.15.
    To ensure that IAC employees understand and are trained to 
implement their security responsibilities, TSA is proposing to require 
a comprehensive and recurrent training program for IACs. This program 
would cover procedures for accepting, accessing and handling cargo 
intended for transport on aircraft as well as record keeping, 
acceptance and maintenance of Sensitive Security Information, and 
communication protocols and other requirements in the security program. 
As part of this initiative, TSA proposes to develop computer and/or 
video-based instructional materials and a testing tool, including a 
minimum standard that an employee will be expected to meet, and 
protocols for situations where employees fail to meet the threshold. 
Development of these training tools will coincide with the review and 
consideration of this NPRM and revisions to the IACSSP; training 
materials should be available to IACs shortly after these changes are 
implemented. TSA believes that development and distribution of these 
training tools will enhance regulatory compliance among the IAC 
community. TSA invites public comment on the practical and economic 
implications of requiring training of IAC and IAC agent personnel, and 
on the best means for achieving a high training standard without 
disrupting commerce.
    TSA also proposes to require IACs to designate a Security 
Coordinator at the corporate level. This individual will be responsible 
for implementing the IAC's security program and will serve as the IAC's 
primary point of contact for communication with TSA. The Security 
Coordinator can be an existing employee with additional duties, but 
someone in this role must be available 24 hours a day. Establishment of 
IAC security coordinators is crucial to ensuring that TSA has an open 
line of communication with this important class of regulated parties. 
Currently, airport operators and aircraft operators must have Security 
Coordinators.
    As TSA is presented with new threat and vulnerability information, 
TSA may need to require IACs to adjust their actions accordingly. 
Currently, TSA communicates such information to regulated parties, 
particularly to aircraft operators, by issuing SDs and Information 
Circulars. TSA is proposing to implement a parallel capability for 
IACs. IACs would be authorized to receive SDs, and required to verify 
receipt of the directive or circular and

[[Page 65269]]

to notify TSA how they will comply with it. If an IAC is unable to 
comply with a SD, it would be allowed to propose an alternative means 
of compliance to TSA. Formalizing this two-way communication is 
necessary to ensure sufficient measures are enacted when the threat 
changes, such as during a heightened state of alert.
    TSA also proposes to codify existing general requirements of the 
IACSSP to require IACs to enhance the security of cargo stored or en 
route to the aircraft operator. The proposal to enhance en route and 
storage security is intended to ensure that IACs are held accountable 
for securing the goods entrusted to them throughout those legs of the 
supply chain for which they are responsible. Acceptable security 
measures are likely to include standards for facility security, and 
lock and seal requirements for conveyances. TSA invites suggestions 
from interested parties regarding the most appropriate solutions 
available.

V. Section-by-Section Analysis of Proposed Changes

Part 1540--Civil Aviation Security: General Rules

Section 1540.5--Terms Used in This Subchapter
    TSA proposes to broaden the definition of ``Indirect Air Carrier'' 
by removing the word ``passenger,'' in order to expand TSA security 
program requirements to freight forwarders that offer cargo to all-
cargo aircraft operations. The ASAC Air Cargo Security working groups 
(``ASAC working groups'') recommended, and TSA agrees, that limiting 
the definition of IAC to only those persons that tender cargo to a 
passenger aircraft would be inconsistent with TSA's goal of extending a 
security regime to all-cargo aircraft operations.
Sections 1540.201 Through 1540.209--Subpart C--Security Threat 
Assessments
    The ASAC working groups recommended, and TSA agrees, that the 
identities of personnel who have unescorted access to cargo to be 
shipped by air should be verified, and that such personnel should be 
subject to appropriate background checks. TSA proposes to create a type 
of personnel background check to be called a ``Security Threat 
Assessment.'' This Security Threat Assessment would include a search by 
TSA of domestic and international databases to determine the existence 
of indicators of potential terrorist threats that meet the standards 
set forth in proposed Subpart C of part 1540. This subpart is 
procedural and sets out the scope and basic procedural requirements of 
a Security Threat Assessment, including related fee requirements, and 
provides for review of TSA determinations in connection with Security 
Threat Assessments.
    In proposed Sec. Sec.  1544.228, 1546.312, and 1548.15, operators 
would be required to ensure that individuals who have unescorted access 
to cargo undergo a Security Threat Assessment or other check. See the 
discussion of Sec.  1544.228 below. This requirement would apply to 
aircraft operators operating under full or all-cargo programs, the 
corresponding foreign air carriers, and IACs that offer cargo to such 
operators.
    TSA's proposed Security Threat Assessment would require in Sec.  
1540.203 that operators verify the individual's identity, after which 
TSA would check their identity information against intelligence records 
and other data related to terrorism. Operators would be required to 
submit the individual's name, date and place of birth, social security 
number and date of naturalization (if a naturalized citizen), 
citizenship status, alien registration number (if applicable) and a 
detailed description of the measures taken to verify the individual's 
identity. After assessing this data to determine whether the individual 
poses or is suspected of posing a threat to national security, 
transportation security or of terrorism, under proposed Sec.  1540.205, 
TSA would notify the regulated party and the individual. This 
notification can take 3 forms:
    1. Security Authorization for Unescorted Cargo. This notification 
would indicate that TSA has not found that the individual presents a 
known or suspected threat to security. Upon receipt of this 
notification, the operator may authorize the individual unescorted 
access to air cargo.
    2. Initial Denial of Authorization for Unescorted Cargo Access. 
This notification would be issued if TSA knew or suspected the 
individual of posing a threat. The individual would be able to appeal 
this determination through adjudication, but the individual would not 
be permitted unescorted access to air cargo while the appeal is 
pending.
    3. Final Denial of Authorization for Unescorted Cargo Access. If 
the individual was determined to present a threat after an initial 
determination was issued and the individual has an opportunity to 
appeal that determination, this notification would inform the operator 
and the individual that he or she must be barred from having unescorted 
access to air cargo.
    Section 1540.207 would set out the appeals procedures under this 
proposal to provide appropriate due process. Section 1540.209 would 
establish the fee requirements necessary to recover associated costs of 
the Security Threat Assessment. Under the proposed rule, the operator 
would not permit the individual to handle cargo until the operator and 
the individual were notified of a Security Authorization for Unescorted 
Cargo Access by TSA. In cases where TSA issues a Denial of 
Authorization for Unescorted Cargo Access, TSA may notify government 
agencies for law enforcement or security purposes, or in the interests 
of national security. TSA recognizes that the requirement for 
background checks may cause affected businesses to alter their hiring 
practices. However, TSA believes that the security benefits of this 
requirement will be considerable and that TSA will be able to conduct 
the initial assessments in an expeditious fashion, providing timely 
notice to the regulated party.

Part 1542--Airport Security

Section 1542.1--Applicability of This Part
    Currently, part 1542 applies to airport operators regularly serving 
aircraft operators with full programs, private charter programs, or 
partial programs under part 1544, or the corresponding foreign air 
carriers under part 1546. Airport operators under part 1542 must have 
and carry out security programs as described in that part and, under 
Sec.  1542.5, must allow TSA to conduct inspections on the airport. 
Airports that do not regularly serve such operations, or only serve 
twelve-five programs, are not now subject to part 1542.
    TSA proposes to revise Sec.  1542.1 by adding subparagraph (d) to 
require that each airport that serves an aircraft operator with any 
security program under part 1544 or a foreign air carrier under part 
1546 would be subject to Sec.  1542.5. This would ensure that TSA could 
inspect aircraft operators and foreign air carriers using an airport 
that does not have a security program. It is critical that TSA have 
access to those aircraft operations to determine whether they are in 
compliance with the security requirements. Accordingly, the proposed 
addition of subparagraph (d) would provide that TSA may enter an 
airport that is not otherwise subject to part 1542 to conduct an 
inspection on an aircraft operator or a foreign air carrier regulated 
under parts 1544 and 1546, respectively. This proposal would not 
require that any additional airport operators obtain security programs; 
it

[[Page 65270]]

would only require that certain airport operators allow TSA to conduct 
inspections under Sec.  1542.5.
Section 1542.205--Security of the Security Identification Display Area 
(SIDA)
    The ASAC working groups recommended, and TSA agrees, that, at 
airports that currently have one or more SIDAs, the SIDA should be 
extended or a new SIDA created to encompass air cargo operations. These 
airports have complete programs under Sec.  1542.101(a) and serve the 
passenger aircraft operators with full programs. Under current Sec.  
1542.205, for each SIDA the airport operator must establish and carry 
out a personnel identification system, subject each individual who has 
unescorted access to a criminal history records check, and ensure each 
individual with unescorted access is properly trained. Currently, air 
cargo operations are not required to be conducted in SIDAs.
    Under paragraph 1542.205(a) TSA is proposing to add a new paragraph 
(a)(2) that expands the scope of operations that must be in a SIDA by 
requiring airports with SIDAs either to expand existing or create new 
SIDA to incorporate areas of cargo operations. These cargo operations 
areas would include areas where cargo is regularly sorted, loaded, or 
unloaded by certain aircraft operators or foreign air carriers. The 
SIDA would only be extended to areas on airport grounds.
    This proposed change would apply only to aircraft operations 
conducted under a full program, and those operating under an all-cargo 
program. Also, only areas of the airport that are regularly used for 
these cargo operations would be made SIDAs. Areas on these airports 
that are only occasionally used would not need to be SIDAs, but the 
aircraft operator would be required to provide security for the area 
under proposed Sec.  1544.225(d). Similarly, at airports that do not 
have SIDAs pursuant to Sec. Sec.  1542.103(a) and 1542.205(a), aircraft 
operators would provide security under proposed Sec.  1544.225(d). All 
airport operators who would be affected by the proposed amendment of 
paragraph 1542.205(a) currently have a SIDA and are already subject to 
the requirements of Sec.  1542.103(a) and Sec.  1542.205.
    TSA also proposes to revise current paragraph 1542.205(b)(2), which 
states that an individual must undergo an employment history 
verification under Sec.  1542.209 before gaining unescorted access to a 
SIDA. This paragraph would be changed to clarify that a criminal 
history records check is required pursuant to Sec.  1542.209 rather 
than an employment history verification. This clarification would make 
the text of Sec.  1542.205(b)(2) consistent with that of Sec.  
1542.209.
    Finally, TSA proposes to add new paragraph 1542.205(c). This 
paragraph would make it clear that an airport operator that is not 
required to have a complete program under Sec.  1542.103(a) is not 
required to establish a SIDA under proposed Sec.  1542.205.
    The security measures required in a SIDA provide additional 
safeguards against unauthorized persons from gaining access to cargo 
operations where they could tamper with the cargo or stow away in 
attempt to take over the aircraft in flight, or introducing into cargo 
an unauthorized explosive, incendiary, or destructive substance or 
item.

Part 1544--Aircraft Operator Security: Air Carriers and Commercial 
Operators

Section 1544.101--Adoption and Implementation
    The ASAC working groups recommended, and TSA agrees, that all-cargo 
aircraft operations conducted in aircraft with a maximum certificated 
take-off weight of more than 45,500 kg (100,309.3 pounds) should be 
subject to certain security requirements beyond those applicable to 
such operations under the current Twelve-Five Standard Security 
Program. TSA has already determined that this size aircraft is of a 
size that could cause significant damage if taken over and used as a 
weapon, and thus when this size aircraft is used in private charter 
passenger operations it must be operated under a private charter 
security program.\21\ Additionally, the 45,500 kg threshold is 
consistent with international security standards adopted by the 
International Civil Aviation Organization. Accordingly, to ensure 
consistent treatment of similar aircraft, TSA proposes, in Sec.  
1544.101(h) and (i), to apply the same threshold by requiring that all-
cargo operations in such aircraft be covered under an all-cargo 
program. Note that such aircraft carry both cargo and certain other 
persons (not passengers) in accordance with FAA rules. 14 CFR 121.547 
and 121.583. These persons handle the cargo and perform other 
operations related to the flight.
---------------------------------------------------------------------------

    \21\ 67 FR 41635 (June 19, 2002), amended by 67 FR 79861 (Dec. 
31, 2002).
---------------------------------------------------------------------------

    Operations under an all-cargo program would no longer be under the 
current twelve-five program. Accordingly, TSA proposes to amend 
paragraph 1544.101(d)(1) to conform to the addition of the all-cargo 
program by providing that the twelve-five program does not apply for 
operations under an all-cargo program.
    In addition, TSA proposes to change the requirement for a twelve-
five program from aircraft with a maximum certificated takeoff weight 
``of 12,500 pounds or more'' to ``more than 12,500 pounds.'' This 
section initially was based on the requirement in ATSA section 132(a) 
that TSA implement a security program for charter air carriers for 
aircraft having a maximum certificated takeoff weight of 12,500 pounds 
or more. In Vision 100, section 606(a), this was changed to require 
security programs for aircraft with a weight of more than 12,500.\22\ 
This proposed amendment is consistent with Congressional intent. Vision 
100 also codified the requirement for charter air carrier security 
programs in 49 U.S.C. 44903(l)(1).
---------------------------------------------------------------------------

    \22\ Century of Aviation Reauthorization Act, Pub. L. 108-176.
---------------------------------------------------------------------------

    Vision 100 section 606(a) also codifies in new 49 U.S.C. 
44903(l)(2) an exemption for armed forces charters so they are not 
subject to the requirements of 44903(l)(1). Such military operations 
are not subject to the requirements of Sec.  1544.101(d) or (e) and no 
TSA rule change is needed to implement this provision.
    TSA also proposes to amend paragraph 1544.101(e)(1), which lists 
the elements of the twelve-five program. TSA proposes the following 
enhancements to the twelve-five program for all-cargo operations: Sec.  
1544.202 (Persons and property onboard the all-cargo aircraft) and 
Sec.  1544.205(a), (b), and (d) (Acceptance and screening of cargo: 
Preventing or deterring the carriage of any explosive or incendiary, 
Screening and inspection of cargo, and Refusal to transport).
Section 1544.202--Persons and Property Onboard the All-Cargo Aircraft
    Section 1544.201 currently requires passenger operations under full 
programs or private charter to screen, inspect, and provide other 
security for persons who board their aircraft and their accessible 
property. This section is geared largely to cover screening of 
passengers and their accessible property, though it also covers 
security measures for other persons boarding aircraft operated under 
full programs or private charter programs.
    TSA proposes to add new Sec.  1544.202. This section would require 
aircraft operators to apply the security measures in their security 
programs to persons who board the aircraft, and to their property. This 
proposed requirement is

[[Page 65271]]

intended to prevent persons who may pose a security threat from 
boarding and to prevent or deter the carriage of unauthorized 
explosives, incendiaries, and other destructive substances or items. 
This section would authorize TSA to incorporate into the security 
programs screening for unauthorized persons, or substances or items 
that could be used to pose a threat to transportation security.
    TSA proposes to incorporate this requirement into both the twelve-
five program for all-cargo operations and the proposed new all-cargo 
program. Such operators currently apply security measures to persons 
who board their aircraft under SDs that TSA has issued in response to 
threats. TSA envisions these measures to continue under this proposed 
rule.
Section 1544.205--Acceptance and Screening of Cargo
    The ASAC working groups recommended, and TSA agrees, that security 
measures for and screening of air cargo should be enhanced. TSA 
proposes to amend paragraphs 1544.205(a), (b), (c), and (d) to broaden 
the scope of security measures that may be required in an aircraft 
operator security program, and to reference the Known Shipper program.
    Specifically, TSA is proposing to require aircraft operators 
operating under a full, all-cargo, or twelve-five security program to 
inspect cargo for unauthorized persons, explosives, incendiaries, and 
other destructive substances or items. TSA believes that this amendment 
is necessary to prevent the introduction of stowaway hijackers, 
explosive devices, or other threats into air cargo. Carriers under 
these programs are currently required to inspect cargo to protect 
against such potential threats. This proposed provision would not alter 
that requirement but is adding it to the CFR and providing industry an 
opportunity for public comment. The security measures in proposed Sec.  
1544.205(a) and (b) are the same as those incorporated into SDs that 
have been issued and are currently being carried out by aircraft 
operators with full programs and twelve-five programs.
    Proposed Sec.  1544.205(b) would authorize TSA to incorporate into 
an aircraft operator's security program screening of cargo for 
unauthorized persons, or substances or items the intentional misuse of 
which could pose a threat to transportation security.
    Current Sec.  1544.205(c) provides that the aircraft operator must 
prevent access by persons other than an aircraft operator employee or 
its agent. TSA is proposing to add that persons authorized by the 
airport operator or host government also may have access. Such 
individuals as Customs inspectors and airport law enforcement officers 
must have access to such areas.
    TSA also proposes to strengthen the cargo acceptance requirements 
applicable to aircraft operators operating under a full program or an 
all-cargo program. Pursuant to proposed Sec.  1544.205(e), an aircraft 
operator would be permitted to accept cargo for air transportation only 
from entities that have comparable security programs. TSA believes that 
this provision is necessary to secure the aircraft by strengthening the 
integrity of the air cargo supply chain. These requirements parallel 
those currently applied to operations conducted under a full program.
    TSA also proposes, in Sec.  1544.205(f), to require each aircraft 
operator to carry out the requirements of its security program for 
cargo to be loaded on its aircraft outside the United States. Not all 
of the part 1544 requirements can be carried out in other countries. 
Rather, TSA works with the host governments, under international 
agreements, to ensure that the security measures in place provide the 
appropriate level of security.
Section 1544.225--Security of Aircraft and Facilities
    The ASAC working groups recommended, and TSA agrees, that 
additional steps should be taken to assure that attempted unauthorized 
access to the aircraft and cargo is detected and prevented.
    Proposed paragraph 1544.225(d) would require the operators of 
aircraft operating under a full program or an all-cargo program to 
prevent unauthorized access to the operational area of the aircraft 
while loading or unloading cargo. This requirement would apply to 
operations conducted both within and outside a SIDA. TSA recognizes 
that current paragraph 1544.225(b) requires all aircraft operators 
operating under security programs to prevent unauthorized access to 
each aircraft. Proposed paragraph (d) would broaden this requirement, 
for aircraft operated under a full or an all-cargo program, to clarify 
that unauthorized access must be prevented to the operational area 
around the aircraft during cargo loading and unloading operations. This 
measure would provide an additional layer of protection around the 
aircraft.
Section 1544.228--Security Threat Assessments for Cargo Personnel
    TSA proposes to require persons who have unescorted access to cargo 
to undergo a security check. This would require that they comply with 
the requirements of subpart C of part 1540 by successfully completing a 
Security Threat Assessment, or that they undergo a criminal history 
records check under current rules, or other approved Security Threat 
Assessment. This requirement would apply to aircraft operators under a 
full program or an all-cargo program.
    TSA believes that this step is necessary to reduce the likelihood 
of a terrorist gaining employment in a position with access to cargo 
for the purpose of introducing an explosive, stowaway hijacker, or 
other destructive substance into air cargo. Extending Security Threat 
Assessments to these individuals would allow for a comparable degree of 
security for all personnel with access to cargo on behalf of regulated 
parties from the time it is picked up from a shipper to the time it is 
loaded on the aircraft.
    This proposal would allow for another Security Threat Assessment to 
be approved by TSA. For instance, if the individual had undergone a 
Security Threat Assessment for the issuance of a hazardous materials 
endorsement on a commercial drivers license in accordance with 49 CFR 
1572.5, TSA could approve that as acceptable for compliance with 
proposed Sec.  1544.228.
    TSA has proposed a fee structure and collection process to fund 
some or all of the costs associated with the proposed Security Threat 
Assessment requirements. The proposed fee may be found at section VII 
titled Fee Authority for the Security Threat Assessment of this NPRM.
Section 1544.229--Fingerprint-Based Criminal History Records Checks 
(CHRC): Unescorted Access Authority, Authority To Perform Screening 
Functions, and Authority To Perform Checked Baggage or Cargo Functions
    The ASAC working groups recommended, and TSA agrees, that the 
identities of persons who perform certain key actions with air cargo 
should be subject to verification and that the backgrounds of these 
persons should be checked. TSA proposes to broaden the background check 
requirements by revising paragraph 1544.229(a)(1)(iii)(B) to include a 
cross-reference to the new paragraph 1544.229(a)(1)(iii)(C). The new 
paragraph requires persons who screen cargo that will be carried on an 
aircraft of an operator required to screen cargo under part 1544 to 
submit to a CHRC under Sec.  1544.229. Currently, Sec.  1544.229 
applies, in pertinent part, only to persons having authority to screen 
cargo, in the United States, of an

[[Page 65272]]

aircraft operator required to screen passengers under this part, or 
serving as an immediate supervisor of such an individual, when the 
cargo will be carried in the cabin of the aircraft. Accordingly, only 
cargo screeners for operators with full programs currently are subject 
to Sec.  1544.229. This new requirement parallels the current 
requirement that persons who screen passengers and carry-on baggage 
(accessible property) must comply with Sec.  1544.229. TSA also 
proposes to require that cargo screeners for operators with all-cargo 
programs be subject to the criminal history records check requirements 
of Sec.  1544.229. This change would provide an additional protection 
against individuals who screen cargo for the largest all-cargo aircraft 
from using their positions to introduce unauthorized explosives, 
incendiaries, persons, or destructive substances or items into the 
cargo or aircraft.
Section 1544.239--Known Shipper Program
    Proposed Sec.  1544.239 would codify the Known Shipper program in 
the federal regulations. The ``known shipper'' concept, which 
differentiates cargo being shipped by recognized entities from that 
originating with unknown parties, has been a fundamental element of air 
cargo security since 1976. The program has also been recognized as a 
global standard by the International Air Transport Association (IATA) 
and was recognized by the United States Congress as a form of screening 
in ATSA. Aircraft operators operating under a full program would be 
required to have a Known Shipper program including measures to ensure 
the shippers' validity and integrity, to inspect or further screen 
cargo, and to provide shipper data to TSA. Aircraft operators must meet 
these requirements in accordance with the standards detailed in their 
security program. The Known Shipper program would apply to operations 
under full programs.
    Aircraft operators with full programs are already required to 
maintain a Known Shipper program under their security programs. TSA 
believes that it is prudent to set out the major features of this 
program in regulation at this time. Additional changes to how the Known 
Shipper program must operate may be included in revisions to the 
security program.

Part 1546--Foreign Air Carrier Security

Section 1546.101--Adoption and Implementation
    The ASAC working groups recommended, and TSA agrees, that cargo 
operations of foreign air carriers that land or take-off in the United 
States should be required to conform to essentially the same 
requirements as those applicable to comparable operations by domestic 
aircraft operators. TSA proposes to broaden the provisions of Sec.  
1546.101 to require each foreign air carrier landing or taking off in 
the United States to adopt and carry out an appropriate security 
program for each covered all-cargo operation. TSA proposes to establish 
the requirements of an appropriate security program for a covered 
foreign air carrier conducting all-cargo operations for operations in 
aircraft having a maximum certificated take-off weight greater than 
45,500 kg (100,309.3 pounds) (analogous to a U.S. all-cargo program 
under part 1544), and for operations in aircraft having a maximum 
certificated take-off weight greater than 12,500 pounds up to 45,500 kg 
(100,309.3 pounds) (analogous to a U.S. twelve-five program in all-
cargo operations under part 1544).
Section 1546.103--Form, Content, and Availability of Security Program
    TSA proposes to make an administrative change to paragraph 
1546.103(a) by removing the word ``passenger'' and changing ``U.S. air 
carriers'' to ``U.S. aircraft operators.''
    In paragraph 1546.103(b), TSA proposes to add paragraphs 1546.101 
(e) and (f) to the introductory text. This proposed change broadens the 
requirements to embrace cargo operations.
Section 1546.202--Persons and Property Onboard the Airplane
    This proposed new section parallels the requirements of the 
proposed aircraft operations in the United States. The rationale for 
this addition is described in the section-by-section analysis for Sec.  
1544.202.
Section 1546.205--Acceptance and Screening of Cargo
    The ASAC Working groups recommended, and TSA agrees, that, 
consistent with recognition of the sovereignty of foreign states, 
aviation security regulations should be clarified with respect to the 
duty of foreign air carriers for the security of air cargo loaded in or 
destined for the United States. TSA proposes to amend paragraph (a) and 
add paragraphs (c), (d), (e), and (f) to Sec.  1546.205. These 
paragraphs are parallel to those for U.S. aircraft operators in 
proposed Sec.  1544.205.
    Proposed paragraph 1546.205(d), ``Screening and inspection of cargo 
in the United States,'' would provide that each foreign air carrier 
must ensure that, as required in its security program, cargo is 
screened and inspected for explosives, incendiaries, unauthorized 
persons, and other destructive substances or items as provided in the 
foreign air carrier's security program, in accordance with Sec.  
1546.207, and Sec.  1546.215 if applicable, before loading it on its 
aircraft in the United States.
    Proposed paragraph 1546.205(e), ``Acceptance of cargo in the United 
States,'' would provide that each foreign air carrier may accept cargo 
in the United States only from the shipper, or from an aircraft 
operator, foreign air carrier, or IAC operating under a security 
program under this chapter, with a comparable cargo security program as 
provided in its security program.
    Proposed paragraph 1546.205(f) would provide that, for cargo to be 
loaded on its aircraft outside the United States, each foreign air 
carrier must carry out the requirements of its security program.
Section 1546.213--Security Threat Assessment for Cargo Personnel in the 
United States
    TSA proposes to require persons who are not required to complete a 
CHRC under Sec. Sec.  1542.209, 1544.229, or 1544.230 and who have 
unescorted access to cargo, to comply with the requirements of subpart 
C of part 1540 by successfully completing a Security Threat Assessment. 
This requirement would apply to foreign air carriers under paragraphs 
1546.101(a), (b), or (e). The rationale for this security measure 
parallels that rationale described in the section-by-section analysis 
for Sec.  1544.228.
Section 1546.215--Known Shipper Program
    TSA proposes to codify the Known Shipper program for the foreign 
air carriers just as we proposed in Sec.  1544.239. The rationale for 
adding this new section is the same as stated in the section-by-section 
analysis for Sec.  1544.239.

Part 1548--Indirect Air Carrier Security

Section 1548.5--Adoption and Implementation of the Security Program
    TSA proposes to revise paragraphs (a), (b), and (c) of Sec.  1548.5 
regarding the adoption and implementation of the

[[Page 65273]]

IACSSP. The proposed change to paragraph 1548.5(a) would specify that 
no IAC may offer cargo to an aircraft operator operating under a full 
program or an all-cargo program specified in part 1544, or to a foreign 
air carrier operating a passenger operation under paragraphs 
1546.101(a) and (b) or an all-cargo program under paragraph 
1546.101(e), unless that IAC has and carries out an approved security 
program under part 1548.
    The proposed change to paragraph 1548.5(b) would broaden the scope 
of screening actions that may be required in an individual IAC's 
security program. IACs having cargo screening responsibilities under 
current Sec.  1548.5(b)(1) and their approved security programs must 
``[p]rovide for the safety of persons and property traveling in air 
transportation against acts of criminal violence and air piracy and the 
introduction of any unauthorized explosive or incendiary into cargo 
aboard a passenger aircraft.'' TSA proposes to revise this requirement 
to provide that the IAC must ``provide for the security of persons and 
property traveling in air transportation against acts of criminal 
violence and air piracy and the introduction of any unauthorized 
person, explosive, incendiary, or other destructive substances or items 
as provided in the IAC's security program.''
    This provision would also broaden the duty of IACs to include cargo 
to be carried on an aircraft operated under an all-cargo program rather 
than solely in passenger operations. This change parallels the cargo 
security requirements in proposed Sec. Sec.  1544.205 and 1546.205. It 
authorizes TSA to incorporate into an IAC's individual security program 
screening of cargo for unauthorized persons, or substances or items the 
intentional misuse of which could pose a threat to transportation 
security. Under Sec.  1548.5(b)(1)(i), this requirement would apply 
from the time the IAC accepts the cargo to the time it transfers the 
cargo to an entity that is not an employee, agent, contractor, or 
subcontractor of the IAC. This proposed provision clarifies the 
existing IAC security program requirement that the IAC is responsible 
for carrying out security measures under this part when its employee, 
agent, contractor or subcontractor fulfills its function. Section 
1548.5(b)(1)(ii) would apply while the cargo is stored, en route, or 
otherwise being handled by an employee, agent, contractor, or 
subcontractor of the IAC. Section 1548.5(b)(1)(iii) would apply 
regardless of whether the IAC has or ever has physical possession of 
the cargo. At times, IACs perform cargo services that may include 
arranging for transportation of cargo by other entities. This proposed 
amendment clarifies that the IAC is responsible for these shipments 
even though the IAC, itself, does not have physical possession. 
Proposed paragraph 1548.5(b) would also require the IAC to assure that 
its employees, agents, contractors, and subcontractors comply with the 
requirements of the IAC's security program. This provision currently is 
in the IACs' standard security programs.
    The proposed change to paragraph 1548.5(c) would assure that the 
content of each IAC security program reflects the scope of security 
measures established under proposed Sec.  1548.5(b), references Known 
Shipper program requirements that are proposed to be codified in Sec.  
1548.17, and establishes a new requirement that each IAC security 
program include documentation of the procedures and curriculum used to 
accomplish the training of persons who accept, store, transport or 
deliver cargo for or on behalf of the IAC. This training would be 
required under proposed new Sec.  1548.11.
Section 1548.7--Approval, Amendment, Annual Renewal, and Withdrawal of 
Approval of the Security Program
    TSA proposes to restructure and revise this section both to reflect 
actual practices and enhance the security of this regulatory regime. 
The proposed revision of paragraph 1548.7(a) accounts for the fact that 
TSA has developed the IACSSP. Consistent with current practices, rather 
than submitting a security program for TSA approval, an entity would 
request approval to operate under the IACSSP. The proposed addition 
explains how an applicant must seek approval to operate under the 
IACSSP, including a record-keeping requirement and a list of 
information that the applicant must submit to TSA for consideration. 
Paragraph 1548.7(a) also proposes the process that TSA will follow to 
approve an applicant's operation under a security program, proposes 
that approvals would be effective for one year, and provides that the 
approved IAC must notify TSA of changes to the initial application. TSA 
would use the information submitted by IAC applicants to verify their 
legitimacy through a check of publicly-available records and to cross 
check that information against data on known and suspected terrorists.
    Under current practices, TSA issues an IACSSP to expire each year. 
The proposed addition of paragraph 1548.7(b) presents the processes an 
IAC must follow to annually seek renewed TSA approval to operate under 
the IACSSP. Annual renewal would be a continuation, and codification, 
of the current practice. Other entities regulated by a TSA security 
program, such as aircraft operators and airports, must obtain FAA 
certification. IACs are not required to do so. Additionally, TSA has 
found that the IAC industry has a high degree of turnover. Accordingly, 
TSA proposes in paragraph 1548.7(b) that the IAC must submit to TSA for 
renewal at least 30 calendar days prior to expiration of the IACSSP as 
well as other standards for the submission. The proposed renewal 
standards also include that the IAC certify that it has provided TSA 
with its most up-to-date information and acknowledge that intentional 
falsification of the information may be subject to civil and criminal 
penalties. The addition further proposes the standard for TSA to renew 
the approval of an IACSSP. Proposed Sec.  1548.7(b) otherwise codifies 
the existing security program required for annual renewal.
    The proposed additions of paragraphs 1548.7(c), (d), and (e) revise 
the existing requirements of paragraphs 1548.7(b), (c) and (d), 
respectively. Many of the changes parallel changes made previously to 
similar requirements for airport operator security programs and 
aircraft operator security programs in Sec. Sec.  1542.105 and 
1544.105. In part, the new paragraphs have been moved to ensure that 
the structure of the section remains logical. Proposed Sec.  1548.7(c) 
closely parallels the existing Sec.  1548.7(b), but adds Sec.  
1548.7(c)(6)--allowing a group of IACs to submit a proposed amendment 
together. Proposed paragraph 1548.7(d) is the same as the existing 
paragraph 1548.7(c). The proposed paragraph 1548.7(e) revises the 
existing Emergency Amendments (EA) standards of the existing paragraph 
1548.7(d). The proposed paragraph is separated into three subparagraphs 
for easier reading. Proposed paragraph 1548.7(d)(1) substitutes 
``aviation security'' for ``safety in air transportation or in air 
commerce'' to clarify the breadth of TSA's EA authority. Proposed 
paragraph 1548.7(d)(2) reorganizes existing EA standards to emphasize 
immediate effectiveness and that TSA will provide a brief statement 
regarding the rationale for the EA. Finally, paragraph 1548.7(d)(3) 
provides the IAC with 15 days to file a petition for reconsideration 
but provides that the filing of the petition does not stay the 
effective date of the amendment.
    TSA proposes to codify procedures for TSA to withdraw an IAC's 
approval to operate under the IACSSP with the

[[Page 65274]]

addition of paragraph 1548.7(f). The proposed standard for withdrawal 
is a TSA determination that the operation is contrary to security and 
the public interest. Proposed paragraph 1548.7(f) provides procedures 
for notice, response, and petition for reconsideration. The affected 
IAC would be able to request a stay of the withdrawal. TSA also 
proposes the codification of emergency withdrawal procedures. This 
proposal creates procedural guidelines to implement withdrawal of a 
security program and affords due process to the IAC. The emergency 
procedures would allow the IAC to submit a petition for 
reconsideration, but the filing of a petition will not stay the 
effective date of withdrawal.
    Proposed paragraph 1548.7(g) adds provisions for proper service of 
documents in the withdrawal proceedings. Procedures for time extensions 
are proposed at paragraph 1548.7(h).
Section 1548.9--Acceptance of Cargo
    TSA proposes to revise paragraph 1548.9(a) to broaden the scope of 
the IAC's duty to prevent or deter the carriage of unauthorized persons 
or destructive substances or items on board an aircraft to the existing 
requirements regarding explosives and incendiaries. With the expanded 
definition of IAC, this provision proposes to require IACs to carry out 
these procedures whenever offering cargo for air transportation on all-
cargo aircraft, as well as a passenger aircraft under a full program. 
This proposed section further provides that, subject to TSA approval of 
the provisions of the IAC's security program. Additionally the proposed 
amendment would add a requirement that the IAC request the shipper's 
consent to search or inspect the cargo.
    TSA proposes to revise paragraph 1548.9(b) by adding all-cargo 
aircraft operations to the search and inspection requirements. Under 
current paragraph 1548.9(b), this duty extends only to cargo that is 
intended for shipment aboard a passenger aircraft. By removing the word 
``passenger,'' this paragraph would extend to cargo for shipment aboard 
all-cargo aircraft operations as well. Proposed paragraph 1548.9(b) 
would delete the requirement, found in current paragraph 1548.9(b), 
that the IAC must search or inspect cargo. This amendment is primarily 
aimed at creating a parallel structure to the requirements found in 
parts 1544 and 1546.
Section 1548.11--Training and Knowledge for Individuals with Security-
Related Duties
    The ASAC working groups recommended, and TSA agrees, that certain 
employees of IACs, and of agents, contractors, and subcontractors 
performing services for IACs, should be subject to security-related 
training. These enhanced requirements for training covers individuals 
who perform security-related duties to ensure the appropriate security 
standards are met.
    TSA proposes to add new Sec.  1548.11(a), which specifies that an 
IAC must not use any individual to perform any security-related duties 
to meet the requirements of its security program unless the individual 
has received training as specified in its security program. This 
requirement would cover employees of the IAC as well as employees of 
any agent, contractor, or subcontractor performing security-related 
duties for the IAC.
    Under proposed Sec.  1548.11(b), additional training would be 
specified for individuals who accept, handle, transport, or deliver 
cargo for or on behalf of the IAC. This training must include, at a 
minimum, requirements contained in the applicable provisions of part 
1548, applicable SDs and Information Circulars, the approved airport 
security program applicable to their location, and the aircraft 
operator's or IAC's security program to the extent that such 
individuals need to know in order to perform their duties.
    Proposed paragraph 1548.11(c) would require annual recurrent 
training of covered individuals in these elements of knowledge. 
Pursuant to proposed Sec.  1548.7(a), initial training of the 
identified individuals performing duties for the IAC must be completed 
before an IAC may begin operations under its approved security program.
Section 1548.13--Security Coordinators
    The ASAC working groups recommended, and TSA agrees, that 
communication among regulated aircraft operators, airport operators, 
TSA, and IACs concerning security matters must be improved, and 
responsibility for compliance by IACs with TSA security requirements 
must be clarified. TSA proposes to require each IAC to designate and 
use an Indirect Air Carrier Security Coordinator (IACSC). The IAC would 
be required to appoint the IACSC at the corporate level, and IACSC 
would be directed to serve as the IAC's primary contact for security-
related activities and communications with TSA, as set forth in the 
IACSSP. Either the IACSC or an alternate IACSC would be required to be 
available on a 24-hour basis. This proposed addition parallels existing 
security coordinator positions required of airport operators in Sec.  
1542.3 and aircraft operators in Sec.  1544.215.
Section 1548.15--Security Threat Assessments for Individuals Having 
Unescorted Access to Cargo
    The ASAC working groups recommended, and TSA agrees, that the 
identities of personnel who have unescorted access to cargo to be 
shipped by air should be verified, and that such personnel should be 
subject to an appropriate background check. TSA proposes to add new 
Sec.  1548.15, which would prohibit each IAC from authorizing any 
individual unescorted access to cargo until the IAC has verified the 
identity of that individual in a manner acceptable to TSA, and that 
individual has successfully completed a Security Threat Assessment 
pursuant to proposed subpart C of 1540. The rationale for this security 
measure parallels that described in the section-by-section analysis for 
Sec.  1544.228.
Section 1548.17--Known Shipper Program
    TSA proposes to add new Sec.  1548.17 to codify the Known Shipper 
program in regulation. This addition is essentially the same as that 
for aircraft operators under proposed Sec.  1544.239.
Section 1548.19--Security Directives and Information Circulars
    The ASAC working groups recommended, and TSA agrees, that 
communication between regulated IACs and TSA concerning security 
matters must be improved, and responsibility for compliance by IACs 
with TSA security requirements must be clarified. In the past, when 
threat conditions required that additional security measures be carried 
out immediately, TSA has issued EAs to IACs' security programs. This 
section would, in part, provide a procedure for TSA to impose such 
measures using SDs. TSA proposes to add new Sec.  1548.19, which would 
authorize TSA to issue SDs and Information Circulars to regulated IACs, 
and would mandate compliance by the IAC with each SD that it receives. 
Proposed Sec.  1548.19 would also require the IAC to acknowledge in 
writing receipt of the SD within the time prescribed in the SD, and to 
specify the method by which the measures in the SD have been 
implemented (or will be implemented, if the SD is not yet effective) 
within the time prescribed in the SD. In the event that the IAC is 
unable to implement the measures in an SD, proposed Sec.  1548.19 would 
authorize

[[Page 65275]]

the IAC to submit proposed alternative measures and the basis for the 
alternative measures to TSA for approval. The IAC would be required to 
submit the proposed alternative measures within the time prescribed in 
the SD and, if they are approved by TSA, the IAC would be required to 
implement them.
    Proposed Sec.  1548.19 also provides that each IAC that receives an 
SD may comment on the SD by submitting data, views, or arguments in 
writing to TSA, and that TSA may amend the SD based on comments 
received. Proposed Sec.  1548.19 also provides that submission of a 
comment would not delay the effective date of the SD.
    Proposed Sec.  1548.19 also provides that each IAC that receives a 
SD or Information Circular and each person who receives information 
from a SD or Information Circular would be required to restrict the 
availability of the SD or Information Circular, and information 
contained in either document, to those persons with a need-to-know. The 
IAC would be required to refuse to release the SD or Information 
Circular, and information contained in either document, to persons 
other than those with a need-to-know without the prior written consent 
of TSA.

VI. Proposed Compliance Schedule

    Most of the provisions in this proposed rule would codify existing 
SD requirements. It appears to TSA that most of the new provisions in 
this proposed rule are achievable by the regulated parties within 90 
days. However, TSA recognizes the need for further time to implement 
some provisions. TSA proposes that the proposed rule, if adopted, would 
become effective as follows:
    (1) The proposed rule would become effective 90 days after the date 
of publication of the final rule in the Federal Register and operators 
would generally be required to comply with the requirements (with the 
exception of the compliance date described in VI. (2)).
    (2) TSA proposes that certain measures in the proposed rule would 
require compliance by 180 days from the date of publication of the 
final rule in the Federal Register. TSA believes IACs will need as much 
as 180 days to introduce new training requirements under Sec.  1548.11 
and to establish and operate under a TSA security program pursuant to 
Sec.  1548.7. Finally, TSA proposes to provide 180 days for aircraft 
operators, foreign air carriers, and IACs to comply with the security 
threat assessment for those individuals required to submit to the 
requirements pursuant to proposed Sec. Sec.  1544.228, 1546.213, and 
1548.15.
    TSA requests additional information from the public on how many 
operators would be affected, what the impact would be on those 
individual operators, and the proposed compliance schedule.

VII. Fee Authority for Security Threat Assessment

    The USA PATRIOT Act did not grant TSA authority to collect fees to 
cover the costs associated with completing background checks. However, 
on October 1, 2003, legislation was enacted requiring TSA to collect 
reasonable fees to cover the costs of providing credentialing and 
background investigations in the transportation field, including 
implementation of the USA PATRIOT Act requirements.\23\ Fees collected 
under this legislation (Section 520) must be used to pay for the costs 
of conducting or obtaining a criminal history records check (CHRC); 
reviewing available law enforcement databases, commercial databases, 
and records of other governmental and international agencies; reviewing 
and adjudicating requests for waivers and appeals of TSA decisions; and 
any other costs related to performing the background records check or 
providing the credential.
---------------------------------------------------------------------------

    \23\ Department of Homeland Security Appropriations Act, 2004, 
Section 520, Pub. L. 108-90, October 1, 2003, 117 Stat. 1137.
---------------------------------------------------------------------------

    Section 520 mandates that any fee collected shall be available for 
expenditure only to pay for the costs incurred in providing services in 
connection with performing the background check or providing the 
credential. The fee shall remain available until expended. TSA is 
establishing this fee in accordance with the criteria in 31 U.S.C. 9701 
(General User Fee Statute), which requires fees to be fair and based on 
(1) costs to the government, (2) the value of the service or thing to 
the recipient, (3) public policy or interest served, and (4) other 
relevant facts.

Summary of Security Threat Assessment Requirement

    TSA currently requires a variety of individuals working in aviation 
to submit to criminal history records checks to reduce the likelihood 
that a terrorist would gain employment that would give them access to 
the aircraft. Generally, these individuals work on airport grounds and 
have unescorted access to secure areas. In the cargo environment, many 
other persons have access to cargo before someone who has had such a 
check handles it. TSA recognizes that the number of individuals 
handling cargo is very large and that extending fingerprint-based 
records checks to these people would likely be a very time-consuming 
and costly process that would cause a major disruption to the domestic 
and international transportation of goods. TSA is proposing a focused 
Security Threat Assessment program to determine whether individuals 
seeking to handle cargo present a terrorist threat. This program will 
reduce the likelihood that a terrorist might gain access to a cargo 
aircraft.
    Flexibility will be achieved by ensuring that each of the following 
individuals with unescorted access to cargo be required to have either 
a Security Threat Assessment or unescorted SIDA access: (1) IAC 
personnel; (2) Aircraft Operator personnel operating under a full 
program or an all-cargo program; and (3) Foreign Air Carrier personnel 
under 49 CFR 1546.101(a), (b), or (e). TSA also proposes to conduct a 
Security Threat Assessment on each officer, director and person who 
holds 25 percent or more of total outstanding voting stock of an 
Indirect Air Carrier or entity applying to become an IAC.

Security Threat Assessment Population

    Personnel with unescorted access to cargo that work for an IAC, an 
aircraft operator, or a foreign air carrier would be required to 
undergo a name-based Security Threat Assessment. Additionally each 
officer, director and person who holds 25 percent or more of total 
outstanding voting stock of an Indirect Air Carrier or entity applying 
to become an IAC would be required to undergo a name-based Security 
Threat Assessment. TSA approximates a de minimis number of persons who 
hold 25 percent or more total outstanding voting stock that are not 
also officers or directors of these IACs. Accordingly, TSA has not 
accounted for these individuals separately. However, those personnel 
with unescorted SIDA access have undergone a criminal history records 
check. TSA would accept the criminal history records check in lieu of 
the proposed Security Threat Assessment for these personnel.

The Indirect Air Carrier Population

    TSA estimates that there are approximately 3,800 companies that are 
defined as IACs. TSA further estimates that there are approximately 7 
employees per IAC. Therefore the total population is estimated to be 
26,600.

[[Page 65276]]

Cargo Personnel Not Subject to Other TSA Security Threat Assessments

    TSA has estimates that there are approximately 65 aircraft 
operators and foreign air carriers operating all-cargo flights that 
have employees who are subject to the proposed Security Threat 
Assessment. As discussed in the economic evaluation, aircraft operators 
and foreign air carriers have some employees who are required to submit 
to the fingerprint-based SIDA check but some employees would only be 
required to submit to the Security Threat Assessment. Because most of 
the operator employees are covered in the SIDA background check 
requirements, TSA believes that only a limited number of employees 
would be required to submit to a Security Threat Assessment and not the 
security assessment for SIDA workers. There may be instances where all 
employees with access to the cargo will have the security assessment 
for SIDA workers. TSA estimates that there are approximately 25 
employees for each aircraft operator and foreign air carrier operating 
all-cargo flights who would be required to submit to a Security Threat 
Assessment. Therefore the total population is estimated to be 1,625 
(65x25).

Total Initial Population

    Given the IAC population of 26,600 and the population of relevant 
aircraft operators and foreign air carriers operating all-cargo flights 
employees of 1,625, the total population subject to a Security Threat 
Assessment is 28,225 (26,600 + 1,625). This initial population would be 
required to submit to a Security Threat Assessment during the first 
year of the program.

Recurring Population

    TSA estimates approximately 15% of the initial total population 
would be required to submit to a Security Threat Assessment each year 
after the initial assessment. This percentage represents new employees 
or employees with a new requirement for the Security Threat Assessment. 
Therefore the recurring population that would be required to submit to 
a Security Threat Assessments is estimated to be 4,234.

Five Year Population

    Given the first year population of 28,225 and subsequent annual 
recurring population of 4,234, we estimate that the total population 
receiving a Security Threat Assessment over the first 5 years is 45,161 
(28,225 + 4 x 4,234).

Program Costs

    This section summarizes TSA's estimated costs for establishing the 
program, processes, and resources to establish and perform the Security 
Threat Assessment on the appropriate population.

Leveraging Existing Resources

    Where possible, TSA would leverage existing processes, 
infrastructure and personnel that are envisioned to be in place for 
other Security Threat Assessment programs at the time this program on 
Security Threat Assessment begins operation. Existing infrastructure 
that would be leveraged include the HAZMAT Endorsement Program's \24\ 
Hazardous Materials Endorsement Screening Gateway System (HMESG); 
however, some modifications to these systems would be necessary to meet 
proposed requirements. These changes would include connectivity with 
additional government agencies, software enhancement and additional 
backup capabilities. In addition to the HMESG, this program would 
leverage existing real estate and Project Management Office personnel. 
The additional costs that would be incurred by the HAZMAT program have 
been identified in the recurring cost section below.
---------------------------------------------------------------------------

    \24\ The HAZMAT Endorsement Program is a program currently being 
developed by the TSA to provide background checks on drivers with a 
Hazardous Materials Endorsement on their Commercial Drivers License. 
Initially, all current endorsement holders will have a name-based 
check performed on them and, as an individual renews or applies for 
a HAZMAT endorsement, a fingerprint-based background check will be 
performed.
---------------------------------------------------------------------------

Start-Up Costs

    We estimate that the total start-up costs would be $690,000. This 
includes $570,000 for hardware and software modifications for the 
existing HAZMAT HMESG and $120,000 for program management personnel. 
See Figure 1 below for additional details.

Recurring Costs

    We estimate that the total annual recurring costs would be $928,354 
for the first year and $214,102 for each subsequent year. These costs 
include an annual $50,000 expense TSA will incur for connectivity and 
$66,454 expense for use of the HAZMAT program infrastructure. The use 
of the HAZMAT program infrastructure would include use of program 
management, adjudication and fee processing personnel, use of real 
estate, and use of systems. The first recurring year would have 
significantly higher costs associated with those costs that are 
completely variable (i.e., a function of the number of Security Threat 
Assessments performed). The combined first year cost for third party 
terrorist threat \25\ checks and third party clearinghouse fees will be 
$783,675 and the costs for the four following years would be $93,414 
annually.
---------------------------------------------------------------------------

    \25\ The third party assessments include (i) those performed by 
the Office of National Risk Assessment (ONRA) and (ii) FBI named-
based checks through Automated Case Systems (ACS).-

                                           Figure 1.--Costs Estimates
----------------------------------------------------------------------------------------------------------------
        Category and subcategory                    Description              Start-Up      Year 1     Recurring
----------------------------------------------------------------------------------------------------------------
Hardware/Software:
    HAZMAT HMESG Modification...........  The Hazardous Materials             $570,000  ...........  ...........
                                           Endorsement Screening Gateway
                                           System.
    HAZMAT HMESG Connectivity...........  ...............................  ...........      $50,000      $50,000
                                                                          --------------
      Hardware/Software Total...........  ...............................      570,000       50,000       50,000
                                                                          ==============
Federal Personnel: Personnel to staff     Additional federal employees         120,000  ...........  ...........
 program office.                           will be required to staff the
                                           program office during the
                                           start-up phase. In the start-
                                           up phase, one FTE at $120,000
                                           annually will be necessary for
                                           program implementation and
                                           development.
                                                                          --------------
      Total Federal Personnel...........  ...............................      120,000  ...........  ...........
                                                                          ==============

[[Page 65277]]

 
Third Party Clearinghouse Fee: Third      The third party clearinghouse    ...........       84,675       12,702
 Party Clearinghouse Fee.                  will collect and process the
                                           applicant's biographical
                                           information, collect the
                                           applicant fee and forward the
                                           information and fee to TSA.
                                                                          --------------
      Total Third Party Clearinghouse     ...............................  ...........       84,675       12,702
       Fee.
                                                                          ==============
Terrorist Threat Assessment:
    Automated Case System Fee (FBI name   A terrorist threat analysis is   ...........      564,500       67,260
     based checks-Automated Case           the process of querying
     Systems).                             applicant names in terrorist
                                           threat and criminal databases.
                                           This cost is derived by
                                           multiplying the total
                                           population by the cost per
                                           applicant of several database
                                           checks. $20 per applicant.
    Office of National Risk Assessment    A terrorist threat analysis is   ...........      134,500       13,452
     Fee.                                  the process of querying
                                           applicant names in terrorist
                                           threat and criminal databases.
                                           The cost is derived by
                                           multiplying the total
                                           population by the cost per
                                           applicant of several database
                                           checks: $4 per applicant.
                                                                          --------------
      Total-Terrorist Threat Assessment.  ...............................  ...........      699,000       80,712
Additional costs to existing programs:    Leveraging the planned           ...........       66,454       66,454
 Additional costs incurred by HAZMAT       infrastructure to the HAZMAT
 program.                                  program will increase the
                                           total recurring costs by 1%
                                           per year. The cost here is 1%
                                           of the average relevant annual
                                           costs. Includes Federal and
                                           Contractor personnel, Office
                                           Facilities, and Systems.
      Total additional costs to existing  ...............................  ...........       66,454       66,454
       programs.
                                                                          ==============
      Total Costs.......................  ...............................      690,000      928,354      214,102
----------------------------------------------------------------------------------------------------------------

Total Costs

    Based on its population and cost estimate assumptions, TSA 
estimates that start-up phase costs would be approximately $690,000 and 
recurring phase costs would be approximately $928,354 annual for the 
first recurring year and $214,102 for each subsequent year. Therefore 
the total cost of the program for the first 5 years would be 
$2,474,762.

Cost Adjustments

    Pursuant to the Chief Financial Officers Act of 1990, DHS/TSA will 
review this fee at least every two years.\26\ Upon review, if it is 
found that the fee is either too high or too low, a new fee will be 
proposed.
---------------------------------------------------------------------------

    \26\ 31 U.S.C. 902.
---------------------------------------------------------------------------

Fee Calculation

    TSA is proposing to charge a fee to cover the recurring costs of 
the program. Start-up costs will be provided by TSA.

Recurring Phase Costs

    TSA estimates that the total annual recurring phase costs for the 
first 5 years would be $1,784,762. These total costs consist of the sum 
of the first year costs plus the four recurring years at $214,102 per 
year. The expected applicants divide these costs over the first 5 
years. Therefore the fee associated will be $39 ($1,784,762/45,161) per 
applicant, rounded to the nearest dollar from $39.52. The fees are 
based on summing the annual costs and population over 5 years. This 
calculation is done in order to account for any variability that may 
arise from the imprecise nature of the population and cost estimates.

Fee Remittance Process

    TSA would employ a third party to establish the infrastructure for 
collecting data and fees, cleansing data, and forwarding the funds and 
information to TSA. This process would function in a similar manner to 
other TSA background check programs and may include the services of 
Pay.gov. The third party processing costs are accounted for in the 
``Third Part Clearinghouse Fee'' category in Figure 1-Cost Estimates.

VIII. Regulatory Evaluation Summary

    Proposed changes to Federal regulations must undergo several 
economic analyses. First, Executive Order 12866 directs each Federal 
agency to propose or adopt a regulation only if the agency makes a 
reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 
requires agencies to analyze the economic impact of regulatory changes 
on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531-
2533) prohibits agencies from setting standards that create unnecessary 
obstacles to the foreign commerce of the United States. In developing 
U.S. standards, this Trade Act requires agencies to consider 
international standards and where appropriate, as the basis of U.S. 
standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Public Law 
104-4) requires agencies to prepare a written assessment of the costs, 
benefits and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation).
    In conducting these analyses, TSA has determined this proposed 
rule:
    (1) Has benefits which are likely to justify its costs, is not a 
``significant regulatory action'' as defined in the Executive Order, 
but is significant due to public interest, rather than economically;
    (2) Will not have a significant impact on a substantial number of 
small entities;

[[Page 65278]]

    (3) Imposes no significant barriers to international trade; and
    (4) Does not impose an unfunded mandate on State, local, or tribal 
governments, or on the private sector.
    These analyses, available in the docket, are summarized below.

Economic Impacts

    This summary highlights the costs and benefits of the proposed rule 
to amend the transportation security regulations to further enhance and 
improve the security of air cargo transportation. TSA has determined 
that this is not a major rule within the definition of Executive Order 
12866, as annual costs or benefits to all parties do not pass the $100 
million threshold in any year. Likewise there are no significant 
economic impacts for each of the required analyses of small business 
impact, international trade, or unfunded mandates. A separate detailed 
regulatory evaluation is available in the docket and TSA invites 
comments on all aspects of the economic analysis.
    TSA proposes to create a mandatory security program for all-cargo 
aircraft operations over 45,500 kg (100,309.3 lbs) and to amend 
existing security regulations and programs for aircraft operators, 
foreign air carriers, airport operators, and IACs. IAC would be 
redefined to include those transporting goods via all-cargo aircraft. 
Mandatory security programs for all-cargo operations would replace the 
voluntary DSIP and extensively build on the requirements of the Twelve-
Five Standard Security Program. TSA also proposes to expand the use of 
background checks and threat assessments to new populations, including 
IAC employees and individuals who have unescorted access to cargo, 
where such operations are either outside of the currently defined 
airport SIDA.

Costs

    The following sections summarize the estimated costs of this NPRM 
by general category of who pays. A summary table is provided for an 
overview of the cost items, the regulation section creating the 
requirement, and a brief description of cost elements. Both in this 
summary and the economic evaluation, descriptive language is used to 
address the consequences of the regulation. Although the regulatory 
evaluation attempts to mirror the terms and wording of the regulation, 
no attempt is made to replicate precisely the regulatory language and 
readers are cautioned that the actual regulatory text, not the text of 
the regulatory evaluation, is binding.
    Aircraft Operators will incur additional costs to comply with 
requirements of this NPRM. Over the 10-year period of 2004-2013, all-
cargo aircraft operators are estimated to incur costs totaling 
approximately $600,000 to comply with new requirements to require 
background checks for individuals who screen cargo for all-cargo 
airplanes and their supervisors, as well as for employees with 
unescorted access to the cargo. The NPRM proposes to require all-cargo 
aircraft operators to screen all persons entering the aircraft. This 
requirement is estimated to impose additional costs of approximately 
$33.7 million over the ten-year period of this analysis. All-cargo 
aircraft operators also will be required to take additional measures to 
secure the aircraft and facilities at an estimated cost of $33.6 
million. Although every all-cargo operator will now have to designate a 
security coordinator, many already have the requirement. The estimated 
cost for these duties is $200,000. All-cargo aircraft operators who 
conduct operations with airplanes having a maximum certificated take-
off weight greater than 45,500kg (100,309.3 lbs) would be required to 
provide additional law enforcement capability to comply with proposed 
requirements to extend or create new secure areas to encompass air 
cargo operations. TSA estimates this ten-year cost to be $27 million. 
Finally, proposals to require random screening of cargo on passenger 
aircraft and on all-cargo flights are estimated to impose additional 
ten-year costs of $493 million, and $167 million, respectively.
    Airport Operators of airports that currently have one or more SIDAs 
will be required to extend or create a new SIDA to encompass air cargo 
operations. This proposed change would apply only to aircraft 
operations conducted with airplanes having a maximum certificated take-
off weight greater than 45,500kg (100,309.3 lbs) operating a full or 
all-cargo program. TSA estimates the cost of this requirement to be 
$900,000 over the ten-year period of this analysis. This cost reflects 
the cost of additional employee badges, and the administrative costs of 
updating the airports' security plans.
    Indirect Air Carriers will be impacted in several ways if the 
proposals in this NPRM become effective. IACs will be required to 
complete Security Threat Assessments for individuals having unescorted 
access to cargo. This requirement is estimated to impose costs totaling 
$3.4 million over ten years. IACs also will be required to implement 
training and develop a testing tool for individuals who perform 
security related duties to meet the requirements of their security 
programs. These costs are estimated at $15.1 million over the ten-year 
period 2004-2013. These costs include the cost of initial training and 
annual recurrent training for the IAC labor force. This NPRM 
establishes new requirements for IACs to obtain approval, to amend, and 
for annual recertification of their security programs. The costs 
estimated to comply with these requirements are $36 million over the 
period of this analysis.
    Foreign Air Carriers' costs inside the United States are considered 
domestic costs for the purpose of this analysis, and therefore were not 
estimated separately from domestic carrier costs; a separate discussion 
for these costs is not included. This method of cost consideration 
reflects the way DOT reports on foreign aircraft operations in the U.S. 
and the way it reports the cost impact of such aircraft operations on 
the U.S. economy.
    TSA will incur costs as a result of the proposed rule. To develop 
the training that IACs will be required to implement and ensure that 
IAC employees have completed will cost the agency approximately 
$450,000. TSA also will incur costs to administer the Known Shipper 
program of approximately $24.5 million. The cost to TSA for the vetting 
of IACs is estimated at $2.6 million. TSA will also be modifying a 
system under development for another rule to accommodate the Security 
Threat Assessments in this proposed rule. The costs of utilizing this 
system are included in a fee proposal and therefore are captured in the 
unit costs used to develop the costs for the aircraft operators and 
IACs.
    In summary, the cost impacts of this NPRM are estimated to total 
approximately $837 million, undiscounted, over the period 2004-2013. 
Aircraft operators will incur costs totaling $758 million; airport 
operators $900,000; IACs $51 million; and TSA anticipates cost 
expenditures to administer the provisions of the NPRM at $28 million 
over the ten year analysis period. Details on how estimates were 
developed, as well as the discounted value comparisons, are included in 
the full regulatory evaluation. The following table summarizes the 
estimated costs.
BILLING CODE 4910-62-P

[[Page 65279]]

[GRAPHIC] [TIFF OMITTED] TP10NO04.000

BILLING CODE 4910-62-C

Benefits

    The primary benefit of the proposed rule would be increased 
protection to persons and property in the U.S. from acts of terrorism; 
however, some aspects of this proposed rule would provide

[[Page 65280]]

cost savings for the industry as well. This NPRM is intended to enhance 
and improve the security of air cargo transportation. The proposed rule 
is designed to prevent unauthorized persons, explosives, incendiaries, 
and other substances or items from being introduced into the air cargo 
supply chain. Persons on the ground, in buildings, and elsewhere in our 
society would also be afforded enhanced protection against acts of 
terrorism involving the use of an all-cargo aircraft.
    The warning late in 2003 from U.S. Intelligence sources was swift 
and simple: terrorists are considering using cargo aircraft--freighters 
that carry mostly boxes instead of people. Homeland Security officials 
recently declared the existence of intelligence that indicated al-Qaeda 
may be plotting an attack using cargo planes. One security conscious 
carrier has petitioned the U.S. government to allow checks on people 
with access to cargo planes.\27\
---------------------------------------------------------------------------

    \27\ Paraphrase from Business-Times article of Dec. 9, 2003. The 
same elements were reported in numerous news services at 
approximately the same time.
---------------------------------------------------------------------------

    Strengthening air cargo security and expanding security measures to 
all-cargo aircraft operations would provide important countermeasures 
against possible terrorist activities aimed at ultimately destroying 
commercial passenger aircraft and all-cargo aircraft in flight. 
Provisions of the NPRM also reduce the opportunity for terrorists to 
use aircraft involved in the transport of cargo to achieve their goals.
    Although it is difficult to impossible to project statistically the 
likelihood of incidents of terrorist acts involving aircraft, the 
following table reports the costs of several significant events that 
give examples of the potential impact of terrorism to civil aviation:

                                                                  Examples of Incidents
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                             Loss of life/bodily
               Year                          Event              Type of attack          Property loss              injury                Total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
1986..............................  Pan Am 073............  Aircraft hijacking....  $0.55M...............  $66M death $72.5M       $139.05M
                                                                                                            injury.
1987..............................  Korean Airlines 858...  Mid-air explosion.....  .....................  $345M.................  .....................
1988..............................  Pan Am 103............  Mid-air explosion.....  $184M................  $810M.................  $994M
2001..............................  New York World Trade    Aircraft used as a      .....................  ......................  $16B \28\
                                     Center.                 weapon.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\28\ The General Accounting Office (Review of Studies of the Economic Impact of the September 11, 2001, Terrorist Attacks on the World Trade Center, GAO-
  02-700R, May 29, 2002) reviewed 8 separate studies that estimated the impact of the 9/11 destruction of the World Trade Center. Their conclusion was
  that the best estimate of un-reimbursed cost was $16 billion.

    Following significant security incidents, such as those reported in 
the table titled ``Examples of Incidents,'' security agencies have 
strengthened measures designed to prevent recurrences. For this reason, 
the full benefits of avoiding losses such as those presented in the 
table are not claimed in this NPRM. However, terrorist events continue 
to be threatened. Moreover, it appears that the use of a large 
commercial aircraft as a weapon, unprecedented prior to September 11, 
2001, has the potential to raise the cost of a terrorist event by an 
order of magnitude. (The table titled ``Example of Incidents'' does not 
reflect the additional costs of investigations, government action, and 
loss of business due to decreased passenger levels. Consideration of 
these costs would increase the cost of a successful terrorist event 
beyond the numbers presented in the table titled ``Example of 
Incidents.'' Against this scale, it is clear that avoiding just one 
incident of the magnitude that has been characteristic of the types of 
terrorist acts this proposed rule is intended to protect against more 
than justifies the costs imposed by this NPRM.)

Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980 (RFA) establishes ``as a 
principle of regulatory issuance that agencies shall endeavor, 
consistent with the objective of the rule and of applicable statutes, 
to fit regulatory and informational requirements to the scale of the 
business, organizations, and governmental jurisdictions subject to 
regulation.'' To achieve that principle, the RFA requires agencies to 
solicit and consider flexible regulatory proposals and to explain the 
rationale for their actions. The Act covers a wide range of small 
entities, including small businesses, not-for-profit organizations, and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis as described in 
the Act. However, if an agency determines that a proposed or final rule 
is not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 RFA provides that 
the head of the agency may so certify and a regulatory flexibility 
analysis is not required. The certification must include a statement 
providing the factual basis for this determination, and the reasoning 
should be clear.
    As part of implementing the security plan, TSA expects security to 
be integrated into actions the same way safety has become integral to 
how things are done rather than adding layers or extra program costs. 
For this reason, in years beyond the initial year, costs are limited to 
an annual report, insuring their own plan is followed, and vetting any 
new employees. TSA has conducted an initial regulatory flexibility 
analysis. There are a substantial number of IACs and all-cargo carriers 
that are impacted, but TSA's initial finding is that the impacts are 
not substantial.
    TSA has made several conservative assumptions in this analysis, 
which may have resulted in an overestimate of the costs of the proposed 
rule. For example, even though TSA believes most airports and all-cargo 
carriers have many elements of this rule already in place as good 
business practice or out of their own concerns for security, costing 
was done as if the entire group would be implementing these as new 
requirements. Based on information gathered through other efforts with 
the airports, TSA believes the airports have reached out to the 
aviation community and already successfully completed fingerprint-based 
criminal history records checks, and provided access badges and the 
associated access training. As a conservative measure, TSA has assumed 
that there are additional expenses to provide IDs for a limited group 
of employees at 100 locations. Also, there is a distinct possibility 
that very few additional law enforcement officers would be required,

[[Page 65281]]

but TSA allowed for the full-time equivalent coverage for two shifts 
for 20 of the carrier locations. This equated to an average of 0.6 per 
carrier and $27 million over the 10 years.
IACS
    IACs are a subset of freight forwarders. The larger category of 
freight forwarders includes all modes of transportation.\29\ Without 
better information, the characteristics of the total industry are 
assumed to apply to the IACs. The threshold for small business for this 
industry is $6 million and the distributions are as follows:
---------------------------------------------------------------------------

    \29\ For a technical explanation of how the detailed data was 
segmented see the separate Regulatory Evaluation.

                                               Freight Forwarding
           [Number of firms in Duns for SIC 4731 02 by employees (not all records have employee data)]
----------------------------------------------------------------------------------------------------------------
                                                                    <greek-i> w
            Employees               Primary SIC   +Secondary SIC   FTE and sales    Category %        Cmltv %
                                                                       data
----------------------------------------------------------------------------------------------------------------
1-4.............................            4154            4404            4311            55.2           55.23
5-9.............................            1493            1602            1584            20.3           75.52
10-19...........................             826             907             898            11.5           87.02
20-49...........................             519             597             591             7.6           94.59
50+.............................             336             427             422             5.4          100.00
                                 -----------------
      Total.....................            7328            7937            7806           100.0  ..............
----------------------------------------------------------------------------------------------------------------


 
                               [Number of firms in Duns for SIC 4731 02 by sales]
----------------------------------------------------------------------------------------------------------------
                      Sales                           Primary       +Secondary      Category %        Cmltv %
----------------------------------------------------------------------------------------------------------------
<$20k...........................................               5               5             0.0             0.0
$20-$50k........................................              41              62             0.6             0.6
$50,001-$100k...................................             109             167             1.6             2.2
$100,001-$249,999...............................             749             880             8.3            10.5
$250k-$499,999..................................            1763            1877            17.7            28.3
$500k-$999,999..................................            3230            3360            31.8            60.0
$1m-$6m.........................................            3264            3503            33.1            93.1
>$6 million.....................................             627             725             6.9           100.0
                                                 -----------------
      Total.....................................            9788           10579           100.0  ..............
----------------------------------------------------------------------------------------------------------------

    Using the data above and the 3,800 population values in the 
analysis, all but 6.9% (or 3540) would be small entities for this 
analysis. To evaluate the impact, the data was segmented and the 
smallest of the small were examined to see if there was a significant 
impact. If the smallest group can be shown not to have significant 
impact, and because the relationship remains somewhat proportional as 
firm size increases, it is a reasonable conclusion that the overall 
impact is also insignificant. Once again, specific D&B firm data for 
the smallest 10.5% with revenues less than $250,000 was examined. This 
group provided 1110 useable records.
    To estimate the impact, the individual cost items from the report 
above per employee are multiplied times the number of employees and 
then the cost per firm is added. The results are summed over the entire 
population which results in an impact of $72,700 on $170,278,465 of 
revenue or at a rate of .04% in the first or most expensive year. This 
rate of impact is not significant. See the following table for a 
summary of the calculation.

----------------------------------------------------------------------------------------------------------------
                                                                                                   Per employee
                    Item                                     Rate                   Firm costs         costs
----------------------------------------------------------------------------------------------------------------
Annual Reporting...........................  75/report/firm.....................              75  ..............
Training...................................  4 hrs/employee @ $25...............  ..............             100
Security duties............................  20 Hrs/Firm @ 43...................             860  ..............
Decertification............................  1 5 of Firms @250=2.50/Firm........             2.5  ..............
STA........................................  55/Employee........................  ..............              55
                                            --------------------------------------
      Total................................  ...................................           937.5             155
----------------------------------------------------------------------------------------------------------------

All-Cargo Operations
    For All-Cargo Operations, DOT form 41 data from BTS TRASTATS was 
analyzed. The following distribution was found.

                                 Freight
                       [Aircraft size percentage]
------------------------------------------------------------------------
                    Firm size                      >=100   <100    Total
------------------------------------------------------------------------
Large...........................................    77.7     0.8    78.5
Small...........................................    21.1     0.3    21.5
                                                 ---------
  All Firms.....................................    98.8     1.2   100.0
------------------------------------------------------------------------


[[Page 65282]]


                               Departures
                       [Aircraft size percentage]
------------------------------------------------------------------------
                    Firm size                      >=100   <100    Total
------------------------------------------------------------------------
Large...........................................    47.2    15.9    63.1
Small...........................................    22.9    14.0    36.9
                                                 ---------
  All Firms.....................................    70.0    30.0   100.0
------------------------------------------------------------------------


                   Passenger Flight Reporting Freight
                       [Aircraft size percentage]
------------------------------------------------------------------------
                                                                   Grand
                    Firm size                      Large   Small   total
------------------------------------------------------------------------
Large...........................................    88.3     8.5    96.7
Small...........................................     1.5     1.8     3.3
                                                 ---------
                                                    89.8    10.2   100.0
------------------------------------------------------------------------

    Although it reflects revenue data for the large carriers (>$6 
million) and many midsize carriers, too many small carriers are missing 
revenue data to make a cost comparison. TSA invites public comment on 
existing cost and revenue relationship as firms are experiencing under 
the existing security directives.

X. 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 proposed rule and has determined that it imposes the 
same costs on domestic and international entities and thus has a 
neutral trade impact.

XI. Unfunded Mandates Reform Act Analysis

    The Unfunded Mandates Reform Act of 1995 (the Act) 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 an expenditure of $100 million or more (adjusted 
annually for inflation) in any one year by State, local, and tribal 
governments, in the aggregate, or by the private sector, such a mandate 
is deemed to be a ''significant regulatory action.''
    This proposed rule does not contain such a mandate. The 
requirements of Title II do not apply.

XII. Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), a Federal agency must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. This proposal 
contains information collection activities subject to the PRA. 
Accordingly, the following information requirements are being submitted 
to OMB for its review.
    Title: Air Cargo Security Requirements.
    Summary: TSA proposes to amend current transportation security 
regulations to further enhance and improve the security of air cargo 
transportation. Specifically, TSA proposes to create a mandatory 
security program for all-cargo aircraft operations over 45,500 kg 
(100,309.3 lbs) and to amend existing security regulations and programs 
for aircraft operators, foreign air carriers, airport operators, and 
IACs. TSA is also proposing to expand security threat assessment 
requirements to new populations, including certain individuals who have 
unescorted access to air cargo and each officer, director and person 
who holds 25 percent or more of total outstanding voting stock of an 
Indirect Air Carrier or entity applying to become an IAC.
    Use of: Security programs that are developed or amended as a result 
of this proposal will be kept on file and updated so that TSA 
inspectors may check for regulatory compliance and uniform application 
of the rules. Evidence of appropriate employee training in security 
matters will also become a part of this record. Security threat 
assessments conducted as a result of this proposal will be used to 
determine employment suitability for those who have unescorted access 
to cargo and each officer, director and person who holds 25 percent or 
more of total outstanding voting stock of an Indirect Air Carrier or 
entity applying to become an IAC.
    Respondents (including number of): The likely respondents to this 
proposed information requirement are aircraft operators, foreign air 
carriers, IACs, and their employees who undergo security threat 
assessments for a total of approximately 37,090 respondents the first 
year and approximately 8,800 respondents each following year, for an 
average of 18,230 respondents for each of the next 3 years. The annual 
respondents include both new entrants and renewals. The number consists 
of 65 all-cargo operators, 3800 IACs, and their affected employees. TSA 
invites comments regarding these estimates.
    Frequency: Upon implementation, security programs related to this 
proposal, including employee training records, will need to be kept on 
file and updated as necessary. Security threat assessments will be 
conducted for all existing and subsequent new employees who have 
unescorted access to cargo where such employees do not already have 
unescorted SIDA access.
    Annual Burden Estimate: The annual burden associated with the 
security program is estimated to be 30,920 hours, while the annual 
burden associated with the security threat assessments is estimated to 
average 3,559 hours over the next 3 years, for a combined average 
annual total of 34,479 hours.
    The agency is inviting comments to--
    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden;
    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Individuals and organizations may submit comments on the 
information collection requirement by January 10, 2005, and should 
direct them via fax to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Attention: DHS-TSA Desk 
Officer, at (202) 395-5806. Comments to OMB are most useful if received 
within 30 days of publication.
    As protection provided by the Paperwork Reduction Act, as amended, 
an agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number. The OMB control number for this information 
collection will be published in the Federal Register after OMB approves 
it.

XIII. International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is TSA policy to comply with 
International Civil Aviation Organization (ICAO) Standards

[[Page 65283]]

and Recommended Practices to the maximum extent practicable. TSA has 
determined that these proposed regulations are consistent with ICAO 
Standards and Recommended Practices.

XIV. Executive Order 13132, Federalism

    TSA has analyzed this proposed rule under the principles and 
criteria of Executive Order 13132, Federalism. We determined that this 
action would not have a substantial direct effect on the States, on 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 would not have federalism implications.

XV. 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. In accordance with FAA Order 1050.1D, appendix 4, 
paragraph 4(j), this rulemaking action qualifies for a categorical 
exclusion. The FAA order continues to apply to TSA in accordance with 
the Homeland Security Act (Pub. L. 107-296), until DHS publishes its 
NEPA implementing regulations.

Energy Impact

    The energy impact of this document 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 1540

    Air carriers, Aircraft, Airports, Civil Aviation Security, Law 
enforcement officers, Reporting and recordkeeping requirements, 
Security measures.

49 CFR Part 1542

    Air carriers, Aircraft, Airport Security, Aviation safety, Security 
measures.

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.

IX. The Proposed Amendment

    For the reasons set forth above, the Transportation Security 
Administration proposes to amend Title 49 of the Code of Federal 
Regulations parts 1540, 1542, 1544, 1546, and 1548 as follows:

PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES

    1. The authority citation for part 1540 continues to read as 
follows:

    Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-44914, 
44916-44918, 44935-44936, 44942, 46105.

    2. Amend Sec.  1540.5 by revising the definition of ``indirect air 
carrier'' to read as follows:


Sec.  1540.5  Terms used in this subchapter.

* * * * *
    Indirect air carrier means any person or entity within the United 
States not in possession of an FAA air carrier operating certificate, 
that undertakes to engage indirectly in air transportation of property, 
and uses for all or any part of such transportation the services of an 
air carrier. This does not include the United States Postal Service 
(USPS) or its representative while acting on the behalf of the USPS.
* * * * *
    3. Add Subpart C--Security Threat Assessments to read as follows:

Subpart C--Security Threat Assessments

Sec.
1540.201 Applicability and definitions.
1540.203 Operator responsibilities.
1540.205 Notification.
1540.207 Appeal procedures.
1540.209 Security threat assessment fee.


Sec.  1540.201  Applicability and definitions.

    (a) This subpart applies to:
    (1) Each aircraft operator operating under a full program described 
in 49 CFR 1544.101(a);
    (2) Each foreign air carrier operating under a program described in 
49 CFR 1546.101;
    (3) Each indirect air carrier subject to 49 CFR part 1548; and
    (4) Each individual with unescorted access to cargo under one of 
these programs.
    (b) For purposes of this subpart, aircraft operator, foreign air 
carrier, and indirect air carrier listed in paragraphs (a)(1) through 
(a)(3) of this section are referred to as ``operator,'' and the 
individuals listed in paragraph (a)(4) of this section are referred to 
as ``individual.''
    (c) An individual poses a security threat under this subpart when 
TSA determines that he or she is a threat:
    (1) To national security;
    (2) To transportation security; or
    (3) Of terrorism.
    (d) For purposes of this subpart
    (1) Date of service means--
    (i) The date of personal delivery in the case of personal service;
    (ii) The mailing date shown on the certificate of service;
    (iii) The date shown on the postmark if there is no certificate of 
service;
    (iv) Another mailing date shown by other evidence if there is no 
certificate of service or postmark; or
    (v) The date in an e-mail showing when it was sent.
    (2) Day means calendar day.


Sec.  1540.203  Operator responsibilities.

    (a) Each operator subject to this subpart must ensure that an 
individual with unescorted access to cargo must complete the Security 
Threat Assessment described in this section.
    (b) Each operator must:
    (1) Authenticate the identity of the individual by--
    (i) Reviewing two forms of identification, one of which must be a 
government-issued photo ID; or
    (ii) Other means approved by TSA.
    (2) Submit to TSA a Security Threat Assessment application for each 
individual that is signed by the individual and that includes:
    (i) Legal name, including first, middle, and last; any applicable 
suffix; and any other names used.
    (ii) Current mailing address, including residential address if 
different than current mailing address, and all other residential 
addresses for the previous seven years and email, if applicable.
    (iii) Date and place of birth.
    (iv) Social security number, if applicable.
    (v) Citizenship status and date of naturalization if the individual 
is a naturalized citizen of the United States.
    (vi) Alien registration number, if applicable.
    (vii) The following statement reading:

    Privacy Act Notice: Authority: The authority for collecting this 
information is 49 U.S.C. 114, 40113, and 49 U.S.C. 5103a. Purpose: 
This information is needed to verify your identity and to conduct a 
Security Threat Assessment to evaluate your suitability for 
completing the functions required by this position. Your Social 
Security Number (SSN) or alien registration number will be used as 
your identification number in this process and to verify your 
identity. Furnishing this information, including your SSN or alien 
registration

[[Page 65284]]

number, is voluntary; however, failure to provide it will prevent 
the completion of your Security Threat Assessment, without which you 
may not be granted authorization to have unescorted access to cargo. 
Routine Uses: Routine uses of this information include disclosure to 
TSA contractors or other agents who are providing services relating 
to the Security Threat Assessments; to appropriate governmental 
agencies for law enforcement or security purposes, or in the 
interests of national security; and to foreign and international 
governmental authorities in accordance with law and international 
agreement.
    The information I have provided on this application is true, 
complete, and correct to the best of my knowledge and belief and is 
provided in good faith. I understand that a knowing and willful 
false statement, or an omission of a material fact, on this 
application can be punished by fine or imprisonment or both (see 
section 1001 of Title 18 United States Code), and may be grounds for 
denial of authorization or in the case of parties regulated under 
this section, removal of authorization to operate under this 
chapter, if applicable.

    (3) Retain the individual's signed Security Threat Assessment 
application and any communications with TSA regarding the individual's 
application, for 180 days following the end of the individual's service 
to the operator.
    (c) Records under this section may include electronic documents 
with electronic signature or other means of personal authentication, 
where accepted by TSA.


Sec.  1540.205  Notification.

    (a) TSA review. In completing the Security Threat Assessment, TSA 
reviews--
    (1) The information required in Sec.  1540.203(b) and transmitted 
to TSA; and
    (2) Domestic and international databases relevant to determining 
whether an individual poses a known or suspected security threat or 
that confirm an individual's identity.
    (b) Security Authorization for Unescorted Cargo Access. TSA serves 
a Security Authorization on the individual and the operator if TSA 
determines that an individual does not pose a known or suspected 
security threat.
    (c) Initial Denial of Authorization for Unescorted Cargo Access. 
TSA serves an Initial Denial of Authorization on the individual and the 
operator if TSA determines that the individual poses a known or 
suspected security threat. The Initial Denial of Authorization for 
Unescorted Cargo Access includes--
    (1) A statement that TSA has determined that the individual poses a 
security threat;
    (2) The basis for the determination;
    (3) Information about how the individual may appeal the 
determination; and
    (4) A statement that if the individual chooses not to appeal TSA's 
determination within 30 days of receipt of the Initial Denial of 
Authorization, or does not request an extension of time within 30 days 
of the Initial Denial of Authorization in order to file an appeal, the 
Initial Denial of Authorization becomes a Final Denial of Authorization 
for Unescorted Cargo Access.
    (d) Final Denial of Authorization for Unescorted Cargo Access. If 
TSA determines that an individual poses a known or suspected security 
threat, TSA serves a Final Denial of Authorization for Unescorted Cargo 
Access on the operator and the individual who appealed the Initial 
Denial of Authorization.
    (e) Withdrawal by TSA. TSA serves a Withdrawal of the Initial 
Denial of Authorization for Unescorted Cargo Access on the individual 
and a Security Authorization for Unescorted Cargo Access on the 
operator, if the appeal results in a determination that the individual 
does not pose a threat to security.
    (f) Final Disposition. Within 30 days of receipt of a Security 
Authorization for Unescorted Cargo Access or a Final Denial of 
Authorization for Unescorted Cargo Access, the operator must:
    (1) Update the individual's permanent record to reflect the results 
of the Security Threat Assessment;
    (2) Grant or deny the individual's unescorted access to cargo based 
on the results of the threat assessment.


Sec.  1540.207  Appeal procedures.

    (a) Scope. This section applies to individuals who wish to appeal 
an Initial Denial of Authorization for Unescorted Cargo Access that is 
based on TSA's Security Threat Assessment.
    (b) Grounds for Appeal. An individual may appeal an Initial Denial 
of Authorization for Unescorted Cargo Access if the individual is 
asserting that he or she does not pose a known or suspected security 
threat.
    (c) Appeal. An individual initiates an appeal by submitting a 
written reply or written request for materials from TSA. If the 
individual fails to initiate an appeal within 30 days of receipt, the 
Initial Denial of Authorization for Unescorted Cargo Access becomes 
final, and TSA serves a Final Denial of Authorization for Unescorted 
Cargo Access on the operator and the individual.
    (1) Request for materials. Within 30 days of the date of service of 
the Initial Denial of Authorization for Unescorted Cargo Access, the 
individual may serve upon TSA a written request for copies of the 
materials upon which the Initial Denial of Authorization was based.
    (2) TSA response. Within 30 days of receiving the individual's 
request for materials, TSA serves copies upon the individual of the 
releasable materials upon which the Initial Denial of Authorization was 
based. TSA will not include any classified information or other 
protected information described in paragraph (f) of this section.
    (3) Correction of records. If the Initial Denial of Authorization 
for Unescorted Cargo Access was based on a record that the individual 
believes is erroneous, he or she may correct the record, as follows:
    (i) The individual may contact the jurisdiction or entity 
responsible for the information and attempt to correct or complete 
information contained in his or her record.
    (ii) The individual must then provide TSA with the revised record, 
or a certified true copy of the information from the appropriate 
entity, before TSA may determine that the individual meets the 
standards for the Security Threat Assessment.
    (4) Reply. (i) The individual may serve upon TSA a written reply to 
the Initial Denial of Authorization for Unescorted Cargo Access within 
30 days of service of the Initial Denial of Authorization, or 30 days 
after the date of service of TSA's response to the individual's request 
for materials under paragraph (c)(1) of this section, if the individual 
served such a request.
    (ii) In an individual's reply, TSA will consider only material that 
is relevant to verifying identification or determining that the 
individual does not pose a known or suspected security threat.
    (5) Final determination. Within 30 days after TSA receives the 
individual's reply, TSA serves a Final Denial of Authorization for 
Unescorted Cargo Access or a Withdrawal of the Initial Denial of 
Authorization.
    (d) Final Denial of Authorization for Unescorted Cargo Access. (1) 
If TSA determines that the individual poses a security threat, TSA 
serves a Final Denial of Authorization for Unescorted Cargo Access upon 
the individual and the operator. The Final Denial of Authorization 
includes--
    (2) A statement that TSA has reviewed the Initial Denial of 
Authorization, the individual's reply, if any, and any other materials 
or information available to him or her and has determined that the 
individual poses a known or suspected security threat.

[[Page 65285]]

    (e) Withdrawal of Initial Denial of Authorization. If TSA concludes 
that the individual does not pose a security threat, TSA serves a 
Withdrawal of the Initial Denial of Authorization on the individual and 
the operator.
    (f) Nondisclosure of certain information. In connection with the 
procedures under this section, TSA does not disclose classified 
information to the individual, as defined in Executive Order 12968 
section 1.1(d), and reserves the right not to disclose any other 
information or material not warranting disclosure or protected from 
disclosure under law.
    (g) Extension of time. TSA may grant an individual an extension of 
time of the limits set forth in this section for good cause shown. An 
individual's request for an extension of time must be in writing and be 
received by TSA at least 2 days before the due date to be extended. TSA 
may grant itself an extension of time for good cause.
    (h) Judicial review. For purposes of judicial review, the Final 
Denial of Authorization for Unescorted Cargo Access constitutes a final 
TSA order in accordance with 49 U.S.C. 46110.


Sec.  1540.209   Security threat assessment fee.

    (a) Imposition of fees. The fee of $39.00 is required for TSA to 
conduct a security threat assessment for a candidate who has unescorted 
access to cargo and who is subject to the requirements of Part 1540, 
Subpart C, and each officer, director and person who holds 25 percent 
or more of total outstanding voting stock of an Indirect Air Carrier or 
entity applying to become an IAC.
    (b) Remittance of fees. (1) A candidate must remit the fee required 
under this subpart to TSA, in a form and manner acceptable to TSA, each 
time the candidate or an aircraft operator, foreign air carrier, or 
indirect air carrier submits the information required under Sec.  
1540.203 to TSA.
    (2) Fees remitted to TSA under this subpart must be payable to the 
``Transportation Security Administration'' in United States currency 
and drawn on a United States bank.
    (3) TSA will not issue any fee refunds, unless a fee was paid in 
error.

PART 1542--AIRPORT SECURITY

    4. The authority citation for part 1542 continues to read as 
follows:

    Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907, 
44913-44914, 44916-44917, 44935-44936, 44942, 46105.

    5. Amend Sec.  1542.1 by adding paragraph (d) to read as follows:


Sec.  1542.1  Applicability of this part.

* * * * *
    (d) Each airport that serves an aircraft operator operating under a 
security program under part 1544 of this chapter, or a foreign air 
carrier operating under a security program under part 1546 of this 
chapter. Such airport operators must comply with Sec.  1542.5 of this 
part.
    6. Revise paragraphs 1542.205(a) and (b)(2) and add paragraph (c) 
to read as follows:


Sec.  1542.205  Security of the security identification display area 
(SIDA).

    (a) Each airport operator required to have a security program under 
Sec.  1542.103(a) must establish at least one SIDA, which must include 
the following areas:
    (1) Each secured area must be a SIDA.
    (2) Each area that is regularly used to sort cargo that may be 
carried by an aircraft operator under a full or all-cargo program as 
provided in Sec.  1544.101(a) or (h) or under a foreign air carrier 
program under Sec.  1546.101(a), (b), or (e), and each area that is 
regularly used to load cargo on or unload cargo from such aircraft, 
must be a SIDA.
    (3) Other areas of the airport may be SIDAs.
    (b) * * *
    (1) * * *
    (2) Subject each individual to a criminal history records check as 
described in Sec.  1542.209 before authorizing unescorted access to the 
SIDA.
* * * * *
    (c) An airport operator that is not required to have a complete 
program under Sec.  1542.103(a) is not required to establish a SIDA 
under this section.

PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL 
OPERATORS

    7. 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.

    8. Amend Sec.  1544.101 by revising paragraphs (d)(1), (d)(4), and 
(e)(1) and add new paragraphs (h) and (i) to read as follows:


Sec.  1544.101  Adoption and implementation.

* * * * *
    (d) * * *
    (1) Is an aircraft with a maximum certificated takeoff weight more 
than 12,500 pounds.
* * * * *
    (4) Is not under a full program, partial program, or all-cargo 
program under paragraph (a), (b), or (h) of this section.
    (e) * * *
    (1) The requirements of Sec. Sec.  1544.215, 1544.217, 1544.219, 
1544.223, 1544.230, 1544.235, 1544.237, 1544.301(a) and (b), 1544.303, 
and 1544.305; and for all-cargo operations, Sec. Sec.  1544.202, 
1544.205(a), (b), and (d).
* * * * *
    (h) All-Cargo program--adoption: Each aircraft operator must carry 
out the requirements of paragraph (i) of this section for each 
operation that is--
    (1) In an aircraft with a maximum certificated takeoff weight of 
more than 45,500 kg (100,309.3 pounds); and
    (2) Carrying cargo and authorized persons and no passengers.
    (i) All-Cargo program--contents: For each operation described in 
paragraph (h) of this section, the aircraft operator must carry out the 
following, and must adopt and carry out a security program that meets 
the applicable requirements of Sec.  1544.103(c):
    (1) The requirements of Sec. Sec.  1544.202, 1544.205, 1544.207, 
1544.209, 1544.211, 1544.215, 1544.217, 1544.219, 1544.225, 1544.227, 
1544.228, 1544.229, 1544.230, 1544.231, 1544.233, 1544.235, 1544.237, 
1544.301, 1544.303, and 1544.305.
    (2) Other provisions of subpart C of this part that TSA has 
approved upon request.
    (3) The remaining requirements of subpart C of this part when TSA 
notifies the aircraft operator in writing that a security threat exists 
concerning that operation.
    9. Add new Sec.  1544.202 to read as follows:


Sec.  1544.202  Persons and property onboard the all-cargo aircraft.

    Each aircraft operator operating under an all-cargo program or a 
twelve-five program in an all-cargo operation, must apply the security 
measures in its security program for persons who board the aircraft, 
and for their property, to prevent or deter the carriage of 
unauthorized weapons, explosives, incendiaries, persons, and other 
destructive substances or items.
    10. Amend Sec.  1544.205 by revising paragraphs (a), (b), (c) 
introductory text, (c)(2) and (d); and adding new paragraphs (e) and 
(f) to read as follows:


Sec.  1544.205  Acceptance and screening of cargo.

    (a) Preventing or deterring the carriage of any explosive or 
incendiary. Each aircraft operator operating under a full program, an 
all-cargo program, or a twelve-five program in an all-cargo operation, 
must use the procedures, facilities, and equipment described in its 
security program to prevent or deter the carriage of unauthorized 
persons,

[[Page 65286]]

explosives, incendiaries, and other destructive substances or items in 
cargo onboard an aircraft.
    (b) Screening and inspection of cargo. Each aircraft operator 
operating under a full program or an all-cargo program, or a twelve-
five program in an all-cargo operation, must ensure that cargo is 
screened and inspected for unauthorized persons, explosives, 
incendiaries, and other destructive substances or items as provided in 
the aircraft operator's security program and Sec.  1544.207, and as 
provided in Sec.  1544.239 for operations under a full program, before 
loading it on its aircraft.
    (c) Control. Each aircraft operator operating under a full program 
or an all-cargo program must use the procedures in its security program 
to control cargo that it accepts for transport on an aircraft in a 
manner that:
    (1) * * *
    (2) Prevents access by persons other than an aircraft operator 
employee or its agent, or persons authorized by the airport operator or 
host government.
    (d) Refusal to transport. Each aircraft operator operating under a 
full program, an all-cargo program, or a twelve-five program when in an 
all-cargo operation, must refuse to transport any cargo if the shipper 
does not consent to a search or inspection of that cargo in accordance 
with the system prescribed by this part.
    (e) Acceptance of cargo only from specified persons. Each aircraft 
operator operating under a full program or an all-cargo program may 
accept cargo for air transportation only from the shipper, or from an 
aircraft operator, foreign air carrier, or indirect air carrier 
operating under a security program under this chapter with a comparable 
cargo security program, except as provided in its security program.
    (f) Screening of cargo outside the United States. For cargo to be 
loaded on its aircraft outside the United States, each aircraft 
operator must carry out the requirements of its security program.
    11. Amend Sec.  1544.225 by adding new paragraph (d):


Sec.  1544.225  Security of aircraft and facilities.

* * * * *
    (d) When operating under a full program or an all-cargo program, 
prevent unauthorized access to the operational area of the aircraft 
while loading or unloading cargo.
    12. Add new Sec.  1544.228 to read as follows:


Sec.  1544.228  Security threat assessments for cargo personnel.

    This section applies to each aircraft operator operating under a 
full program or an all-cargo program, and to each individual who has 
unescorted access to cargo accepted by such an aircraft operator.
    (a) Before gaining unescorted access to cargo, each individual must 
successfully complete one of the following:
    (1) A criminal history records check under Sec. Sec.  1542.209, 
1544.229, or 1544.230 of this chapter, if the individual is otherwise 
required to undergo such a check under those sections; or
    (2) A Security Threat Assessment under part 1540 subpart C of this 
chapter; or
    (3) Another Security Threat Assessment approved by TSA.
    (b) Each aircraft operator must ensure that each individual who has 
access to its cargo has either successfully completed one of the checks 
in paragraph (a) of this section or is escorted by such an individual.
    13. Amend Sec.  1544.229 by adding introductory text, revising 
paragraphs (a)(1)(iii) introductory text and (a)(1)(iii)(B) and adding 
new paragraph (a)(1)(iii)(C) to read as follows:


Sec.  1544.229  Fingerprint-based criminal history records checks 
(CHRC): Unescorted access authority, authority to perform screening 
functions, and authority to perform checked baggage or cargo functions.

    This section applies to each aircraft operator operating under a 
full program, a private charter program, or an all-cargo program.
    (a) * * *
    (1) * * *
    (iii) Each individual granted authority to perform the following 
screening functions at locations within the United States (referred to 
as ``authority to perform screening functions''):
    (A) * * *
    (B) Serving as an immediate supervisor (checkpoint security 
supervisor (CSS)), and the next supervisory level (shift or site 
supervisor), to those individuals described in paragraph (a)(1)(iii)(A) 
or (a)(1)(iii)(C) of this section.
    (C) Screening cargo that will be carried on an aircraft of an 
aircraft operator required to screen cargo under this part.
* * * * *
    14. Add new Sec.  1544.239 as follows:


Sec.  1544.239  Known shipper program.

    This section applies to each aircraft operator operating under a 
full program under Sec.  1544.101(a).
    (a) For cargo to be loaded on its aircraft in the United States, 
each aircraft operator must have and carry out a known shipper program 
in accordance with its security program. The program must:
    (1) Determine the shipper's validity and integrity as provided in 
its security program;
    (2) Provide that the aircraft operator will separate known shipper 
shipments from unknown shipper shipments; and
    (3) Provide for the aircraft operator to ensure that cargo is 
screened or inspected as set forth in its security program.
    (b) When required by TSA, each aircraft operator must submit in a 
form and manner acceptable to TSA:
    (1) Information identified in its security program regarding an 
applicant to the known shipper program; and
    (2) Upon learning of a change to the information specified in 
paragraph (b)(1) of this section, corrections and updates of this 
information.

PART 1546--FOREIGN AIR CARRIER SECURITY

    15. The authority citation for part 1546 continues to read as 
follows:

    Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907, 
44914, 44916-44917, 44935-44936, 44942, 46105.

    16. Amend Sec.  1546.101 by revising the introductory text and 
paragraph (a) and by adding paragraphs (e) and (f):


Sec.  1546.101  Adoption and implementation.

    Each foreign air carrier landing or taking off in the United States 
must adopt and carry out a security program, for each scheduled and 
public charter passenger operation or all-cargo operation, that meets 
the requirements of--
    (a) Section 1546.103(b) and subparts C, D, and E of this part for 
each operation with an airplane having a passenger seating 
configuration of 61 or more seats;
* * * * *
    (e) Sections 1546.103(b)(2) and (b)(4), 1546.202, 1546.205(a), (b), 
(c), (d), (e), and (f), 1546.213, and 1546.215 for each all-cargo 
operation with an airplane having a maximum certificated take-off 
weight more than 45,500 kg (100,309.3 pounds); and
    (f) Sections 1546.103(b)(2) and (b)(4), 1546.202, 1546.205(a), (b) 
and (c), 1546.213, and 1546.215 for each all-cargo operation with an 
airplane having a maximum certificated take-off weight more than 12,500 
pounds but no more than 45,500 kg.
    17. Amend Sec.  1546.103 by revising paragraph (a)(1) and paragraph 
(b) introductory text to read as follows:

[[Page 65287]]

Sec.  1546.103  Form, content, and availability of security program.

    (a) * * *
    (1) Acceptable to TSA. A foreign air carrier's security program is 
acceptable only if TSA finds that the security program provides a level 
of protection similar to the level of protection provided by U.S. 
aircraft operators serving the same airports. Foreign air carriers must 
employ procedures equivalent to those required of U.S. aircraft 
operators serving the same airport if TSA determines that such 
procedures are necessary to provide a similar level of protection.
* * * * *
    (b) Content of security program. Each security program required by 
Sec.  1546.101(a), (b), (c), (e) or (f) as applicable, must be designed 
to:
* * * * *
    18. Add Sec.  1546.202 to read as follows:


Sec.  1546.202  Persons and property on board the airplane.

    Each foreign air carrier operating under Sec.  1546.101(e) or (f) 
must apply the security measures in its security program for persons 
who board the airplane, and for their property, to prevent or deter the 
carriage of unauthorized weapons, explosives, incendiaries, persons, 
and other destructive substances or items.
    19. Amend Sec.  1546.205 by revising paragraphs (a) and (b) and 
adding new paragraphs (c), (d), (e) and (f) to read as follows:


Sec.  1546.205  Acceptance and screening of cargo.

    (a) Preventing or deterring the carriage of any explosive or 
incendiary. Each foreign air carrier operating a program under Sec.  
1546.101(a), (b), (e) or (f) must use the procedures, facilities and 
equipment described in its security program to prevent or deter the 
carriage of unauthorized persons, explosives, incendiaries, and other 
destructive substances or items in cargo onboard an airplane.
    (b) Refusal to transport. Each foreign air carrier operating a 
program under Sec.  1546.101(a), (b), (e), or (f) must refuse to 
transport any cargo if the shipper does not consent to a search or 
inspection of that cargo in accordance with the system prescribed by 
this part.
    (c) Control. Each foreign air carrier operating a program Sec.  
1546.101(a), (b), or (e) must use the procedure in its security program 
to control cargo that it accepts for transport on an airplane in a 
manner that:
    (1) Prevents the carriage of any unauthorized persons, explosives, 
incendiaries, and other destructive substances or items aboard the 
airplane.
    (2) Prevents access by unauthorized persons other than a foreign 
air carrier employee or its agent, or persons authorized by the airport 
operator or host government.
    (d) Screening and inspection of cargo in the United States. Each 
foreign air carrier operating a program under Sec.  1546.101(a), (b), 
(e), or (f) must ensure that, as required in its security program, 
cargo is screened and inspected for explosives, incendiaries, 
unauthorized persons, and other destructive substances or items as 
provided in the foreign air carrier's security program, in accordance 
with Sec.  1546.207, and Sec.  1546.213 if applicable, before loading 
it on its airplane in the United States.
    (e) Acceptance of cargo in the United States. Each foreign air 
carrier operating a program under Sec.  1546.101(a), (b), or (e) may 
accept cargo in the United States only from the shipper, or from an 
aircraft operator, foreign air carrier, or indirect air carrier 
operating under a security program under this chapter with a comparable 
cargo security program, as provided in its security program.
    (f) Acceptance of cargo to be loaded outside the United States. 
Each foreign air carrier subject to this section that accepts cargo to 
be loaded on its airplane outside the United States must carry out the 
requirements of its security program.
    20. Add a new Sec.  1546.213 to read as follows:


Sec.  1546.213  Security threat assessments for cargo personnel in the 
United States.

    This section applies to each foreign air carrier operating under 
Sec.  1546.101(a), (b), or (e), and to each individual who has 
unescorted access in the United States.
    (a) Before gaining unescorted access to cargo, each individual must 
successfully complete one of the following:
    (1) A criminal history records check under Sec. Sec.  1542.209, 
1544.229, or 1544.230 of this chapter, if the individual is otherwise 
required to undergo such a check under those sections; or
    (2) A Security Threat Assessment under part 1540 subpart C of this 
chapter; or
    (3) Another Security Threat Assessment approved by TSA.
    (b) Each foreign air carrier must ensure that each individual who 
has access to its cargo has either successfully completed one of the 
checks in paragraph (a) of this section or is escorted by such an 
individual.
    21. Add new Sec.  1546.215 as follows:


Sec.  1546.215  Known shipper program.

    This section applies to each foreign air carrier operating a 
program under Sec.  1546.101(a) or (b).
    (a) For cargo to be loaded on its aircraft in the United States, 
each foreign air carrier must have and carry out a known shipper 
program in accordance with its security program. The program must:
    (1) Determine the shipper's validity and integrity as provided in 
its security program;
    (2) Provide that the foreign air carrier will separate known 
shipper shipments from unknown shipper shipments; and
    (3) Provide for the foreign air carrier to ensure that cargo is 
screened or inspected as set forth in its security program.
    (b) When required by TSA, each foreign air carrier must submit in a 
form and manner acceptable to TSA:
    (1) Information identified in its security program regarding an 
applicant to the known shipper program; and
    (2) Upon learning of a change to the information specified in 
(b)(1) of this section, corrections and updates to the information.

PART 1548--INDIRECT AIR CARRIER SECURITY

    22. 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.

    23. Amend Sec.  1548.5 by revising paragraphs (a), (b) and (c) to 
read as follows:


Sec.  1548.5  Adoption and implementation of the security program.

    (a) Security program required. No indirect air carrier may offer 
cargo to or perform cargo services for an aircraft operator operating 
under a full program or an all-cargo program specified in part 1544 of 
this subchapter, or to a foreign air carrier operating under a program 
under Sec.  1546.101(a), (b), or (e) of this subchapter, unless that 
indirect air carrier has and carries out an approved security program 
under this part.
    (b) General requirements. (1) The security program must provide for 
the security of persons and property traveling in air transportation 
against acts of criminal violence and air piracy and the introduction 
of any unauthorized person, explosive, incendiary or other destructive 
substances or items as provided in the indirect air carrier's security 
program. This requirement applies:

[[Page 65288]]

    (i) From the time the indirect air carrier accepts the cargo to the 
time it transfers the cargo to an entity that is not an employee, 
agent, contractor or subcontractor of the indirect air carrier;
    (ii) While the cargo is stored, en route, or otherwise being 
handled by an employee, agent, contractor or subcontractor of the 
indirect air carrier; and
    (iii) Regardless of whether the indirect air carrier has or ever 
had physical possession of the cargo.
    (2) The indirect air carrier must assure that its employees, 
agents, contractors, and subcontractors comply with the requirements of 
the indirect air carrier's security program.
    (c) Content. Each security program under this part must --
    (1) Be designed to prevent or deter the introduction of any 
unauthorized person, explosive, incendiary or other destructive 
substances or items onto an aircraft;
    (2) Include the procedures and description of the facilities and 
equipment used to comply with the requirements of Sec. Sec.  1548.9 and 
1548.17 regarding the acceptance and offering of cargo.
    (3) Include the procedures and curriculum used to accomplish the 
training required under Sec.  1548.11 of persons who accept, handle, 
transport, or deliver cargo for or on behalf of the indirect air 
carrier.
* * * * *
    24. Revise Sec.  1548.7 to read as follows:


Sec.  1548.7  Approval, amendment, annual renewal, and withdrawal of 
approval of the security program.

    (a) Original Application. (1) The applicant must apply for a 
security program in a form and a manner prescribed by TSA not less than 
90 calendar days before the applicant intends to begin operations. The 
application must be in writing and include:
    (i) Business name; other names, including doing business as; state 
of incorporation, if applicable; and tax identification number.
    (ii) The names, addresses, and dates of birth of each officer, 
director, and each person who holds 25 percent or more of total 
outstanding voting stock of the entity.
    (iii) A signed statement from each person listed in paragraph 
(a)(1)(ii) of this section stating whether he or she has been an 
officer, director, or owner of an IAC that had its security program 
withdrawn by TSA.
    (iv) Copies of government-issued identification of persons listed 
in (a)(1)(ii) of this section.
    (v) Addresses of all business locations.
    (vi) Whether the business is a ``small business'' pursuant to 
section 3 of the Small Business Act (15 U.S.C. 632).
    (vii) Statement acknowledging and ensuring that each employee of 
the indirect air carrier who is subject to training under Sec.  1548.11 
will have successfully completed the training outlined in its security 
program before performing security-related duties.
    (viii) Other information requested by TSA concerning Security 
Threat Assessments.
    (ix) Statement acknowledging and ensuring that each individual will 
successfully complete a Security Threat Assessment under Sec.  1548.15 
before the individual has unescorted access to cargo.
    (2) Approval. TSA will approve the security program by providing 
the indirect air carrier with the Indirect Air Carrier Standard 
Security Program and any Security Directives upon determining that:
    (i) The indirect air carrier has met the requirements of this part, 
its security program, and any Security Directives.
    (ii) The approval of its security program is not contrary to the 
interests of security and the public interest.
    (iii) The indirect air carrier has not held a security program that 
was withdrawn within the previous year, unless otherwise authorized by 
TSA.
    (3) Commencement of operations. The indirect air carrier may 
operate under a security program when it meets all requirements, 
including but not limited to successful completion of training and 
Security Threat Assessments by relevant personnel.
    (4) Duration of security program. The security program will remain 
effective until the end of the calendar month one year after the month 
it was approved.
    (5) Requirement to report changes in information. Each indirect air 
carrier with an approved security program under this part must notify 
TSA, in a form and manner approved by TSA, of any changes to the 
information submitted during initial application. This notification 
must be submitted to the designated official for reapproval within 30 
days from the date the change occurred. Changes included in the 
requirement of this paragraph include but are not limited to changes in 
the indirect air carrier's contact information, owners, business 
addresses and locations, and form of business entity.
    (b) Renewal Application. (1) Unless otherwise authorized by TSA, 
each indirect air carrier that has a security program under this part 
must timely submit to TSA, at least 30 calendar days prior to the first 
day of the anniversary month of initial approval of its security 
program, an application for renewal of its security program in a form 
and a manner approved by TSA. Upon timely submittal of an application 
for renewal and unless and until TSA denies the application, the 
indirect air carrier's approved security program remains in effect.
    (2) The application for renewal must be in writing and include a 
signed statement that the indirect air carrier has reviewed and ensures 
the continuing accuracy of the contents of its initial application for 
a security program, subsequent renewal applications, or other 
submissions to TSA confirming a change of information and noting the 
date such applications and submissions were sent to TSA, including the 
following certification:

    [Name of indirect air carrier] (hereinafter ``the IAC'') has 
adopted and is currently carrying out a security program in 
accordance with the Transportation Security Regulations as 
originally approved on [insert date of initial approval]. In 
accordance with TSA regulations, the IAC has notified TSA of any new 
or changed information required for the IAC's initial security 
program. If new or changed information is being submitted to TSA as 
part of this application for reapproval, that information is stated 
in this filing.
    The IAC understands that intentional falsification of 
certification to an air carrier or to TSA may be subject to both 
civil and criminal penalties under 49 CFR 1540 and 1548 and 18 
U.S.C. 1001. Failure to notify TSA of any new or changed information 
required for initial approval of the IAC's security program in a 
timely fashion and in a form acceptable to TSA may result in 
withdrawal by TSA of approval of the IAC's security program.

    (3) TSA will renew approval of the security program if TSA 
determines that:
    (i) The indirect air carrier has met the requirements of this part, 
its security program, and any Security Directives; and
    (ii) The renewal of its security program is not contrary to the 
interests of security and the public interest.
    (4) If TSA determines that the indirect air carrier meets the 
requirements of paragraph (b)(3) of this section, it will renew the 
indirect air carrier's security program. The security program will 
remain effective until the end of the calendar month one year after the 
month it was renewed.
    (c) Amendment requested by an indirect air carrier or applicant. An 
indirect air carrier or applicant may submit a request to TSA to amend 
its security program as follows:

[[Page 65289]]

    (1) The request for an amendment must be filed with the designated 
official at least 45 calendar days before the date it proposes for the 
amendment to become effective, unless a shorter period is allowed by 
the designated official.
    (2) Within 30 calendar days after receiving a proposed amendment, 
the designated official, in writing, either approves or denies the 
request to amend.
    (3) An amendment to an indirect air carrier security program may be 
approved if the designated official determines that safety and the 
public interest will allow it, and if the proposed amendment provides 
the level of security required under this part.
    (4) Within 30 calendar days after receiving a denial of the 
proposed amendment, the indirect air carrier may petition the 
Administrator to reconsider the denial. A petition for reconsideration 
must be filed with the designated official.
    (5) Upon receipt of a petition for reconsideration, the designated 
official either approves the request to amend or transmits the 
petition, together with any pertinent information, to the Administrator 
for reconsideration. The Administrator will dispose of the petition 
within 30 calendar days of receipt by either directing the designated 
official to approve the amendment or by affirming the denial.
    (6) Any indirect air carrier may submit a group proposal for an 
amendment that is on behalf of it and other indirect air carriers that 
co-sign the proposal.
    (d) Amendment by TSA. TSA may amend a security program in the 
interest of safety and the public interest, as follows:
    (1) TSA notifies the indirect air carrier, in writing, of the 
proposed amendment, fixing a period of not less than 30 calendar days 
within which the indirect air carrier may submit written information, 
views, and arguments on the amendment.
    (2) After considering all relevant material, the designated 
official notifies the indirect air carrier of any amendment adopted or 
rescinds the notice of amendment. If the amendment is adopted, it 
becomes effective not less than 30 calendar days after the indirect air 
carrier receives the notice of amendment, unless the indirect air 
carrier petitions the Administrator to reconsider no later than 15 
calendar days before the effective date of the amendment. The indirect 
air carrier must send the petition for reconsideration to the 
designated official. A timely petition for reconsideration stays the 
effective date of the amendment.
    (3) Upon receipt of a petition for reconsideration, the designated 
official either amends or withdraws the notice of amendment or 
transmits the petition, together with any pertinent information, to the 
Administrator for reconsideration. The Administrator disposes of the 
petition within 30 calendar days of receipt by either directing the 
designated official to withdraw or amend the notice of amendment, or by 
affirming the notice of amendment.
    (e) Emergency Amendments. (1) If TSA finds that there is an 
emergency requiring immediate action with respect to aviation security 
that makes procedures in this section contrary to the public interest, 
the designated official may issue an emergency amendment, without the 
prior notice and comment procedures described in paragraph (d) of this 
section.
    (2) The emergency amendment is effective without stay on the date 
the indirect air carrier receives notification. TSA will incorporate in 
the notification a brief statement of the reasons and findings for the 
emergency amendment to be adopted.
    (3) The indirect air carrier may file a petition for 
reconsideration with the Administrator no later than 15 calendar days 
before the effective date of the emergency amendment. The indirect air 
carrier must send the petition for reconsideration to the designated 
official; however, the filing does not stay the effective date of the 
emergency amendment.
    (f) Withdrawal of approval of a security program. TSA may withdraw 
the approval of the indirect air carrier's security program, if TSA 
determines continued operation is contrary to security and the public 
interest, as follows:
    (1) Notice of proposed withdrawal of approval. The designated 
official will serve a notice of proposed withdrawal of approval that 
notifies the indirect air carrier, in writing, of the facts, charges, 
and applicable law, regulation, or order that forms the basis for the 
determination.
    (2) IAC reply. The indirect air carrier may respond to the notice 
of proposed withdrawal of approval no later than 15 calendar days after 
receipt of the withdrawal by providing the designated official in 
writing with any material facts, arguments, applicable law, and 
regulation.
    (3) TSA review. The designated official will consider all 
information available, including any relevant material or information 
submitted by the indirect air carrier, before either issuing a 
withdrawal of approval of the indirect air carrier's security program 
or rescinding the notice of proposed withdrawal of approval. If a 
withdrawal of approval is issued, it becomes effective upon receipt by 
the indirect air carrier or 15 calendar days after service, whichever 
occurs first.
    (4) Petition for reconsideration. The indirect air carrier may 
petition the Administrator to reconsider the withdrawal of approval by 
serving a petition for consideration no later than 15 calendar days 
after the indirect air carrier receives the withdrawal of approval. The 
indirect air carrier must serve the petition for reconsideration to the 
designated official. Submission of a petition for reconsideration will 
not automatically stay the withdrawal of approval. The indirect air 
carrier may request the designated official to stay the withdrawal of 
approval pending consideration of the petition.
    (5) Administrator's review. The designated official transmits the 
petition together with all pertinent information to the Administrator 
for reconsideration. The Administrator will dispose of the petition 
within 15 calendar days of receipt by either directing the designated 
official to rescind the withdrawal of approval or by affirming the 
withdrawal of approval. The decision of the Administrator is a final 
order under 49 U.S.C. 46110.
    (6) Emergency withdrawal. If TSA finds that there is an emergency 
requiring immediate action with respect to aviation security that makes 
procedures in this section contrary to the public interest, the 
designated official may issue an emergency withdrawal of the indirect 
air carrier's security program, without first issuing a notice of 
proposed withdrawal effective without stay on the date that the 
indirect air carrier receives notice of the emergency withdrawal. In 
such a case, the designated official will send the indirect air carrier 
a brief statement of the facts, charges, and applicable law, 
regulation, or order that forms the basis for the emergency withdrawal. 
The indirect air carrier may submit a petition for reconsideration 
under the procedures in paragraphs (f)(2) through (f)(5) of this 
section; however, this petition will not stay the effective date of the 
emergency withdrawal.
    (g) Service of documents for withdrawal of approval of security 
program proceedings. Service may be accomplished by personal delivery, 
certified mail, or express courier. Documents served on an indirect air 
carrier will be served at the indirect air carrier's official place of 
business as designated in its application for

[[Page 65290]]

approval or its security program. Documents served on TSA must be 
served to the address noted in the notice of withdrawal of approval or 
withdrawal of approval, whichever is applicable.
    (1) Certificate of service. An individual may attach a certificate 
of service to a document tendered for filing. A certificate of service 
must consist of a statement, dated and signed by the person filing the 
document, that the document was personally delivered, served by 
certified mail on a specific date, or served by express courier on a 
specific date.
    (2) Date of service. The date of service will be the date of 
personal delivery; if served by certified mail, the mailing date shown 
on the certificate of service, the date shown on the postmark if there 
is no certificate of service, or other mailing date shown by other 
evidence if there is no certificate of service or postmark; or if 
served by express courier, the service date shown on the certificate of 
service, or by other evidence if there is no certificate of service.
    (h) Extension of time. TSA may grant an extension of time of the 
limits set forth in this section for good cause shown. An indirect air 
carrier's request for an extension of time must be in writing and be 
received by TSA at least 2 days before the due date to be extended. TSA 
may grant itself an extension of time for good cause.
    25. Revise Sec.  1548.9 to read as follows:


Sec.  1548.9  Acceptance of cargo.

    (a) Preventing or deterring the carriage of any explosive or 
incendiary. Each indirect air carrier must use the facilities, 
equipment, and procedures described in its security program to prevent 
or deter the carriage on board an aircraft of any unauthorized person, 
explosive, incendiary, and other destructive substances or items as 
provided in the indirect air carrier's security program.
    (b) Refusal to transport. Each indirect air carrier must refuse to 
offer for transport on an aircraft any cargo if the shipper does not 
consent to a search or inspection of that cargo in accordance with this 
part, or part 1544 or 1546 of this chapter.
    26. Add new Sec.  1548.11 to read as follows:


Sec.  1548.11  Training and knowledge for individuals with security-
related duties.

    (a) No indirect air carrier may use any individual to perform any 
security-related duties to meet the requirements of its security 
program unless that individual has received training as specified in 
its security program including their individual responsibilities in 
Sec.  1540.105 of this chapter.
    (b) Each indirect air carrier must ensure that individuals who 
accept, handle, transport, or deliver cargo for or on behalf of the 
indirect air carrier have knowledge of the applicable provisions of 
this part, applicable Security Directives and Information Circulars, 
the approved airport security program applicable to their location, and 
the aircraft operator's or indirect air carrier's security program to 
the extent that such individuals need to know in order to perform their 
duties.
    (c) Each indirect air carrier must ensure that each individual 
under paragraph (b) of this section for the indirect air carrier 
successfully completes recurrent training at least annually on their 
individual responsibilities in Sec.  1540.105 of this chapter, the 
applicable provisions of this part, applicable Security Directives and 
Information Circulars, the approved airport security program applicable 
to their location, and the aircraft operator's or indirect air 
carrier's security program to the extent that such individuals need to 
know in order to perform their duties.
    27. Add new Sec.  1548.13 to read as follows:


Sec.  1548.13  Security coordinators.

    (a) Indirect Air Carrier Security Coordinator. Each indirect air 
carrier must designate and use an Indirect Air Carrier Security 
Coordinator (IACSC). The IACSC and alternates must be appointed at the 
corporate level and must serve as the indirect air carrier's primary 
contact for security-related activities and communications with TSA, as 
set forth in the security program. Either the IACSC or an alternate 
IACSC must be available on a 24-hour basis.
    (b) [Reserved].
    28. Add new Sec.  1548.15 to read as follows:


Sec.  1548.15  Security threat assessments for individuals having 
unescorted access to cargo.

    This section applies to each indirect air carrier, and to each 
individual who has unescorted access to cargo accepted by such an 
indirect air carrier.
    (a) Before gaining unescorted access to cargo, each individual must 
successfully complete either--
    (1) A criminal history records check under Sec. Sec.  1542.209, 
1544.229, or 1544.230 of this chapter, if the individual is otherwise 
required to undergo such a check under those sections; or
    (2) A Security Threat Assessment under part 1540 of this chapter; 
or
    (3) Another Security Threat Assessment approved by TSA.
    (b) Each indirect air carrier must ensure that each individual who 
has access to its cargo has either successfully completed one of the 
checks in paragraph (a) of this section or is escorted by such an 
individual.
    29. Add new Sec.  1548.17 to read as follows:


Sec.  1548.17  Known shipper program.

    This section applies for cargo that an indirect air carrier offers 
to an aircraft operator operating under a full program under Sec.  
1544.101(a), or to a foreign air carrier operating under Sec.  
1546.101(a) or (b).
    (a) For cargo to be loaded on aircraft in the United States, each 
indirect air carrier must have and carry out a known shipper program in 
accordance with its security program. The program must:
    (1) Determine the shipper's validity and integrity as provided in 
its security program;
    (2) Provide that the indirect air carrier will separate known 
shipper shipments from unknown shipper shipments.
    (b) When required by TSA, each indirect air carrier must submit to 
TSA, in a form and manner acceptable to TSA:
    (1) Information identified in its security program regarding an 
applicant to the known shipper program; and
    (2) Upon learning of a change to the information specified in 
subparagraph (b)(1) of this paragraph, corrections and updates of this 
information.
    30. Add new Sec.  1548.19 to read as follows:


Sec.  1548.19  Security directives and information circulars.

    (a) TSA may issue an Information Circular to notify indirect air 
carriers of security concerns. When TSA determines that additional 
security measures are necessary to respond to a threat assessment or to 
a specific threat against civil aviation, TSA issues a Security 
Directive setting forth mandatory measures.
    (b) Each indirect air carrier required to have an approved indirect 
air carrier security program must comply with each Security Directive 
issued to the indirect air carrier by TSA, within the time prescribed 
in the Security Directive for compliance.
    (c) Each indirect air carrier that receives a Security Directive 
must--
    (1) Within the time prescribed in the Security Directive, 
acknowledge in writing receipt of the Security Directive to TSA.

[[Page 65291]]

    (2) Within the time prescribed in the Security Directive, specify 
the method by which the measures in the Security Directive have been 
implemented (or will be implemented, if the Security Directive is not 
yet effective).
    (d) In the event that the indirect air carrier is unable to 
implement the measures in the Security Directive, the indirect air 
carrier must submit proposed alternative measures and the basis for 
submitting the alternative measures to TSA for approval. The indirect 
air carrier must submit the proposed alternative measures within the 
time prescribed in the Security Directive. The indirect air carrier 
must implement any alternative measures approved by TSA.
    (e) Each indirect air carrier that receives a Security Directive 
may comment on the Security Directive by submitting data, views, or 
arguments in writing to TSA. TSA may amend the Security Directive based 
on comments received. Submission of a comment does not delay the 
effective date of the Security Directive.
    (f) Each indirect air carrier that receives a Security Directive or 
Information Circular and each person who receives information from a 
Security Directive or Information Circular must:
    (1) Restrict the availability of the Security Directive or 
Information Circular, and information contained in either document, to 
those persons with a need-to-know.
    (2) Refuse to release the Security Directive or Information 
Circular, and information contained in either document, to persons 
other than those with a need-to-know without the prior written consent 
of TSA.

    Issued in Arlington, VA, on November 3, 2004.
David M. Stone,
Assistant Secretary.
[FR Doc. 04-24883 Filed 11-9-04; 8:45 am]
BILLING CODE 4910-62-P


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