Details of TSA Final Rule on Air Cargo Screening & Proposed STA Fees

The final rule also seeks comments by September 19 on a proposed fee range for processing Security Threat Assessments (STAs) and announces that TSA is considering proposing a rule to more consistently apply the STA Criminal History Records Check requirement.

(See ITT's Online Archives or 08/17/11 news, 11081716, for BP summary announcing the availability of this rule.)

Interim Final Rule Codified CCSP to Meet 100% Air Cargo Screening

TSA's interim final rule was issued in September 2009, and amended 49 CFR 1515, 1520, 1522, 1540, 1544, 1546, 1548, and 1549 to codify the voluntary Certified Cargo Screening Program, in which TSA certifies shippers, indirect air carriers, and other entities as Certified Cargo Screening Facilities (CCSFs) to screen cargo prior to transport on passenger aircraft. (TSA notes that this program does not apply to international inbound cargo.)

(See ITT's Online Archives or 09/21/09 news, 09092115, for BP summary of the interim final rule.)

Revisions to TSA's Current Regulations

The following are the major regulatory changes contained in the final rule:

Removes Validation Firm Provisions, Only TSA to Conduct CCSF Assessments

Under the current regulations, each CCSF applicant has to successfully undergo an assessment of their facility by a TSA-approved validation firm or by TSA. However, in response to public comment and fewer CCSF applicants than TSA expected, this final rule will eliminate 49 CFR 1522 to remove all validation firm and validator provisions from the regulations. TSA has decided that it does not need independent validators to perform assessments of CCSF applicants as it has the capacity to do so itself. Therefore, only TSA will conduct the assessments of the applicant’s facility to determine if certification is appropriate.

Also Deletes CCSF Requirement for Foreign Air Carrier Screening Off-Airport

The current regulations also state that if an aircraft operator or foreign air carrier screens cargo off-airport, it must do so as a CCSF. The final rule deletes this requirement, as aircraft operators and foreign air carriers are already screening cargo on airport under a TSA-approved security program, and do not need a separate certification to screen cargo off-airport.

Proposes STA Fee Range of $31 and $51, Seeks Comments by Sept 19

In the preamble to the interim final rule, TSA stated that the STA fee would be between $13 and $21, depending on the size of the population and whether costs involved in the calculation change. Due to significant decreases in the population, TSA now states the fee necessary to recover its costs of conducting STAs needs to be increased.

Therefore, this final rule proposes a fee range of $31 and $51 for the processing of STAs. TSA is seeking comments on this fee range and the methodology used to develop it by September 19, 2011. TSA states it will continue to work to minimize all costs and will announce the final fee in a future Federal Register notice. Additionally, TSA is required to review fees no less than every two years. Upon review, if TSA finds that the fees are either too high or too low, TSA will adjust the fee.¹

Other Clarifying Changes and Revisions

Other than the revisions mentioned above, this final rule makes a few other changes, including (partial list):

• Section 1544.105(a) of the current regulations provides that each aircraft operator must submit a security to TSA at least 90 days before the intended date of passenger operations. However, in this rule, TSA is deleting the term "passenger" from the provision as the requirement applies to both passenger and all-cargo operations.
• Sections 1548.15(a) and 1548.15(a)(2) on indirect air carrier security, incorrectly refer to the "aircraft operator." TSA is correcting these sections by inserting the word "indirect air carrier" in place of "aircraft operator."
• TSA is also amending 1540.201(a) on general rules to replace an incorrect reference to 49 CFR 1549.113 with 49 CFR 1549.111.
• TSA clarified language in 1549.7(b)(1) to make it clear that a CCSF must apply for renewal of its security program and its certification every 36 months.

Other Current Regulatory Requirements Continue

The current regulations (implemented by the 2009 interim final rule) provide for the CCSP, which requires CCSF personnel to successfully undergo a TSA conducted STA and submit to an evaluation of its facility by TSA. Once certified, the CCSF must, among other responsibilities:

• Implement a TSA-approved standard security program.
• Ensure that key personnel with unescorted access to screened cargo undergo an STA including (1) each employee and authorized representative who screens cargo or has unescorted access to screened cargo, and (2) each security coordinator and alternate, senior manager of the facility, and other individual who implements the cargo screening program.
• Adhere to strict physical and access control measures for the storage, handing, and screening of cargo.
• Screen cargo using TSA-approved methods.
• Initiate chain of custody measures to ensure the security of the cargo from the time the CCSF screens the cargo until it is loaded on passenger aircraft.
• Appoint security coordinators at the corporate and facility levels and alternates to be available 24 hours per day, 7 days per week.
• Apply for recertification, including a new examination by TSA every 36 months.

Additionally, the threat assessment provisions in 49 CFR 1540 Subpart C for individuals who work in the air cargo sector, were amended by the interim final rule to enhance TSA’s ability to effectively conduct STAs.

Highlights of TSA Responses to Comments

TSA received approximately 40 comments from trade associations, aircraft operators, including a few from individuals. The following are highlights of TSA's responses to comments (partial list):

Small or Mid-Sized FFs Have Several Options for Cargo Screening Without CCSP

Some commenters stated that small and mid-sized freight-forwarders (FFs) do not have the financial resources to participate in the CCSP, and that the CCSP would impose significant economic burdens. TSA states that small- or mid-sized FFs have several options for getting their cargo screened which do not require participation in the CCSP. FFs may choose to have their cargo screened by a CCSF IAC, a CCSF independent cargo screening facility (ICSF), or an aircraft operator, if that is more cost effective than participating in the CCSP.

TSA believes that the most viable option for many small to medium shippers and IACs who do not wish to join the CCSP may be to have their cargo screened by ICSFs located away from the airport. This fee-based solution provides the benefit of screening away from the potential congestion and delay at the airport, without necessitating an investment in facilities, training, or screening equipment.

(TSA has published a list of all CCSFs IACs and ICSFs, as well as other IACs authorized to transport screened cargo for CCSF shippers, available here. See ITT's Online Archives 07/29/11 news, 11072853, for BP summary of TSA's most updated list.)

TSA Considering Proposing Rule on Criminal Record Check Reqs in STAs

TSA is considering proposing a rulemaking that would provide for more consistent application of the Criminal History Records Check (CHRC) requirement in STAs, including STAs for air cargo workers. Rather than addressing a CHRC requirement for air cargo workers on a program-specific basis in this final rule, TSA intends to address the CHRC requirement in the broader context of all TSA programs. TSA believes this approach will result in a more consistent, efficient, and equitable outcome on this issue.

TSA is Working on Mutually Recognizable Security Systems with Foreign Gov'ts

TSA is working closely with its foreign government counterparts to leverage existing air cargo security practices and to work towards compatibility across systems to the greatest extent possible. TSA has been working in both bilateral and multilateral forums to better understand the air cargo security regimes currently in place in other countries in order to promote best practices while also enhancing air cargo security systems, where necessary, in order to ensure commensurate levels of security from system to system. TSA notes this is an ongoing effort which will take considerable time to review and coordinate the development of mutually recognizable systems.

CCSP is Aligned with C-TPAT, but TSA Notes Key Differences

TSA structured the CCSP to incorporate industry security "best practice" procedures recommended by industry representatives, including many of the security measures and processes already used in programs such as the Customs-Trade Partnership Against Terrorism (C-TPAT) and Transported Asset Protection Association, to the extent that these programs were compatible with requirements of the CCSP.

TSA states the CCSP basically aligns with U.S. Customs and Border Protection’s C-TPAT program regarding facility security, background checks, and basic chain of custody. However; TSA notes the following are key differences: (1) the CCSP requires individuals to have a TSA STA, (2) individuals must be trained and implement screening procedures, (3) individuals must complete training specified by TSA, and (4) each entity is identified by site-specific methods rather than company-wide methods.

TSA Exploring New Technology for Screening Palletized & Consolidated Cargo

TSA is exploring newer technologies for screening cargo, especially those technologies that screen palletized and consolidated cargo. TSA has qualified three technologies for screening some skid-level cargo configurations and commodities on the Air Cargo Screening Technology List (ACSTL), and is currently in the process of evaluating additional large aperture technologies for screening cargo.

TSA Developing Online Data Management System to Minimize Reporting Burden

TSA is developing an Air Cargo Data Management System (ACDMS) to facilitate compliance with reporting requirements and minimize the reporting burden on industry. The ACDMS will allow industry to submit certain information to a single point of entry online, which then will provide industry access to several systems and services.

¹A $28 STA fee that was established in 2006 was omitted from the 2009 interim final rule. TSA states that applicants who have previously completed a TSA STA under the 2006 Air Cargo Security Requirements final rule were subject to the security fee in effect at that time and will not be subject to the new fee until their existing STA reaches its five year expiration mark. At that time, applicants re-applying for an STA will be asked to pay the new air cargo screening fee that will be between $31 and $51.

TSA contacts --

(FR Pub 08/18/11, D/N TSA-2009-0018; Amendment Nos. 1515-2, 1520-9, 1522-1, 1540-11, 1544-10, 1546-6, 1548-6, 1549-1; TSA press release (dated 08/18/11, but posted later, available here.)