Security of Checked Baggage on Flights Within the United States; Certification of Screening Companies; Notice of Rulemaking Status

AGENCY:

Transportation Security Administration (TSA), DOT.

ACTION:

Notice of rulemaking status.

SUMMARY:

This notice provides information on the status of two notices of proposed rulemaking (NPRMs), entitled “Security of Checked Baggage on Flights Within the United States” and “Certification of Screening Companies,” which were published by the Federal Aviation Administration (FAA) but now are within TSA's authority as a result of the passage of the Aviation and Transportation Security Act. On February 22, 2002, TSA published a final rule transferring FAA's rules governing civil aviation security to TSA. The purpose of this document is to inform the public that TSA will take no further action on these two NPRMs issued by FAA.

FOR FURTHER INFORMATION CONTACT:

Angela Anderson, TSA-2 Chief Counsel, Transportation Security Administration, 400 Seventh Street, SW., Washington, DC 20590; telephone (202) 385-1641.

SUPPLEMENTARY INFORMATION

Background

On November 19, 2001, Congress enacted Public Law 107-71, 115 Stat. 597, the Aviation and Transportation Security Act (ATSA), which transferred authority over civil aviation security from FAA to TSA. In section 101(f), ATSA transferred FAA's authority in Chapter 449, Title 49 United States Code (U.S.C.), to issue aviation security regulations to TSA. On February 22, 2002, the TSA and FAA published a final rule titled “Civil Aviation Security Rules” (67 FR 8340), transferring the regulations at 14 CFR parts 107, 108, 109 and 191 to 49 CFR parts 1540, 1542, 1544, 1548 and 1520 and §§ 129.25 and 129.26 to part 1546.

The purpose of this notice is to inform the public that TSA will take no further action on the two outstanding FAA NPRMs described below.

Security of Checked Baggage on Flights Within the United States

On April 19, 1999, the FAA published an NPRM titled, “Security of Checked Baggage on Flights Within the United States” (64 FR 19220). The proposed rule would have required each aircraft operator with an FAA-approved security program to use the Computer-Assisted Passenger Screening (CAPS) system to select passengers (selectees) whose checked baggage would be subjected to additional security measures. The proposed rule also would have required aircraft operators to use FAA-certified explosives detection system (EDS) equipment, where available, to screen selectee baggage, or conduct 100 percent passenger-to-baggage matching (PBM). The proposed rule would have applied to each scheduled flight segment within the United States when using aircraft having a seating configuration of 61 or more passenger seats.

The FAA received 605 comments on the NPRM. These comments can be viewed by going to the search function of the Department of Transportation's electronic Docket Management System (DMS) Web page ( http://dms.dot.gov/search ) and typing in the last four digits of the docket number: FAA-1999-5536.

Certification of Screening Companies

On January 5, 2000, the FAA published an NPRM titled, “Certification of Screening Companies” (65 FR 560). The proposed rule would have required companies that perform aviation security screening for air carriers to be certificated by the FAA and meet enhanced requirements. It would have increased qualifications for managers, instructors, and screeners, and would have required the use of threat image projection (TIP) for all X-ray and EDS equipment. The proposed rule also would have made screening companies directly accountable to the FAA, with air carriers continuing to oversee the operations of their screening companies.

The FAA received 31 comments on the NPRM. These comments can be viewed by going to the search function of the Department of Transportation's electronic Docket Management System (DMS) Web page ( http://dms.dot.gov/search ) and typing in the last four digits of the docket number: FAA-1999-6673.

TSA Determination To Take No Further Action

The ATSA mandated sweeping changes to security requirements for the civil aviation system, including the transfer of responsibility for passenger and baggage screening from the private sector to the federal government. See 49 U.S.C. 114. As a result of this change, the two NPRMs discussed above have become obsolete.

Because the two FAA NPRMs addressed civil aviation security under parts 108, and 129, responsibility for those proposed changes also transferred to TSA. The Screening Company NPRM also proposed to add a new part 111 that would have implemented requirements for screening company security. ATSA changed the screening requirements in section 110(b), codified at 49 U.S.C. 44901(a), which now require Federal employees to carry out the screening; and in section 108 which requires establishment of a pilot program for some screening to be done by private companies under contract to TSA. With all of these changes being made TSA has no need to regulate screening companies using the proposed rule. For TSA employees who screen, TSA will use internal policies for screening. We will use contract provisions to govern the screening conducted by contractors under the pilot program.

The ATSA also requires that all checked baggage, not just baggage checked by CAPPS selectees, be inspected using explosive detection systems. See 49 U.S.C. 44901(d), as amended by ATSA section 110(b). Further, Federal employees must do the inspection. TSA is working to install equipment and to hire the screeners to meet these requirements. In addition, TSA must use CAPPS to evaluate all passengers before boarding, not only those who are checking bags. See 49 U.S.C. 44903(i)(2). This requirement is now being met. Accordingly, the proposals in the NPRM are obsolete, and the rule is not needed for TSA to use CAPPS fully and effectively.