January 10, 2005 Docket Management System U.S. Department of Transportation Room Plaza 401 400 Seventh Street, SW Washington, DC 20590-0001 RE: DOCKET NO. TSA 2004-19515, AIR CARGO SECURITY REQUIREMENTS NOTICE OF PROPOSED RULEMAKING The National Air Transportation Association (NATA), the voice of aviation business, is the public policy group representing the interests of aviation businesses before Congress, federal agencies and state governments. NATA's 2,000 member companies own, operate and service aircraft. These companies provide for the needs of the traveling public by offering services and products to aircraft operators and others such as fuel sales, aircraft maintenance, parts sales, storage, rental, airline servicing, flight training, Part 135 on-demand air charter, fractional aircraft program management and scheduled commuter operations in smaller aircraft. NATA members are a vital link in the aviation industry providing services to the general public, airlines, general aviation and the military. NATA appreciates the issuance of this rulemaking as a proposal so that industry suggestions may be considered and acted upon prior to implementation of any regulations. Therefore, NATA respectfully submits the following comments on behalf of our members and, in particular, those conducting all-cargo operations in smaller air charter aircraft under the Transportation Security Administration s (TSA) Twelve-Five Program. As a long-standing member of the Aviation Security Advisory Committee (ASAC), NATA was an active participant in the ASAC All-Cargo working group. Because many of the group s participants and much of the tasking were focused upon the large air carriers, regulated under Part 121, that operate at major hub-type airports, NATA had numerous concerns with the potential for harmful impacts upon the small air taxi/air charter aircraft operators we represent. These carriers, at the time of the ASAC working group meetings, had just begun compliance with the Twelve- Five Program. At that time, and now, NATA supports the Twelve-Five Program as the appropriate security program for smaller air charter operators. It is important to understand that these carriers are highly diverse. The aircraft, location, mission, hours of peak activity and airports used vary significantly from operator to operator. Operators themselves are decentralized across the nation and most have only a single home base of operations rather than the hubs of large allcargo carriers. The charter industry relies almost exclusively on the general aviation ramp areas of airports without airline service or with little airline activity. The Twelve-Five Program recognizes this unique operational environment and has evolved into a customized program that satisfies the cargo security concerns of the air charter industry.
Page 2 of 5 NATA is, therefore, pleased that the TSA has reviewed and endorsed the Twelve-Five Program as appropriate for operators of smaller chartered cargo aircraft. The association agrees with the TSA s assessment that a risk management philosophy is the best approach to securing cargo carried on aircraft. This approach recognizes that 100% screening of all cargo is not only impractical but would cause incalculable damage to the nation s economy. The layered approach to security will allow both government and industry to direct resources to those areas with the greatest risk that can then derive the greatest security benefit. Threat Assessments Proposed Part 1540, Subpart C would establish a threat assessment program for certain aircraft operators and employees. NATA is refraining from specific comment on the details of the program at this time because it does not apply to Twelve-Five Program aircraft operators and their employees. NATA believes this is appropriate due to the nature of operations within the Twelve-Five Program. Generally, it is the pilots of the aircraft that load and unload cargo onto and from the aircraft or it is done under their direct supervision. These pilots have already successfully completed a Criminal History Records Check (CHRC) as required under the Twelve-Five Program. To also require a threat assessment would be redundant. NATA does suggest that the TSA clarify in the preamble for the final rule specifically which security programs (and likewise employees or others) are covered by the provisions and which are not. There is some industry confusion and a number of aircraft operators appear to be unclear of their status with regard to the threat assessment requirement. There also seems to be a conflict between proposed 1540.201 and proposed 1544.228. The applicability of threat assessments to operators subject to the proposed All-Cargo Program is stated in Part 1544, but not in Part 1540. NATA believes that it will help alleviate industry confusion if these regulations are consistent. Screening vs. Inspection Without doubt, the word screening when used to describe aircraft security has specific connotations to government, industry and the public. To most, screening means x-ray machines, metal detectors and explosives detection equipment familiar in the passengercarrying segment of the industry. Throughout the preamble and proposed regulations, the TSA seems to use screening in a different context; that is it is used to mean inspection, evaluation and investigation. Indeed, the TSA itself points out the impracticability of even inspecting 100% of cargo, let alone screening at 100% under the common understanding of the word. NATA believes the TSA s interchangeable use of screening and inspection, with
Page 3 of 5 regard to cargo, is leading to industry confusion over what precisely is being proposed for various aircraft operators. Several Twelve-Five Program operators believe that as used in proposed 1544.205 (b) screening and inspection are two separate, yet required, activities. It is our understanding that this particular regulation is intended to clarify that certain cargo security measures have already been, and will continue to be, in place for all aircraft operators subject to TSA security requirements. Specifically, it seems that the TSA may be desirous of canceling the 2003 Security Directives (SD) and instead incorporating them into the standard security programs as appropriate. Twelve-Five Program operators have been complying with the applicable SDs since their issuance and NATA is not opposed to their incorporation into the security program proper so long as they do not impose any additional burdens. In the preamble s Section-by-Section Analysis, the TSA states that the purpose of 1544.205 is as follows: Specifically, TSA is proposing to require aircraft operators operating under a full, allcargo, or twelve five security program to inspect cargo for unauthorized persons, explosives and incendiaries, and other destructive substances or items. (69 FR 65271, emphasis added) NATA recommends that the TSA carry over their articulated intent to the regulation. This would enhance understanding of the regulation by affected entities by avoiding confusion between the screening requirements for airline passengers and their baggage and the different risk-based and layered security requirements for cargo. NATA recommends that the TSA amend the language of proposed 1544.205 (b) as follows: (b) Inspection of cargo. Each aircraft operator..., must ensure that cargo is inspected for..., before loading it on its aircraft. Comparable Entities Section 1544.205 (e) prohibits an aircraft operator with either a full or all-cargo security program from accepting cargo from another aircraft operator unless that operator has a comparable cargo security program. Both the preamble and regulation are silent on the TSA s definition of comparable in this context. NATA seeks further clarification on the intention of this particular regulation with regard to operators under the Twelve-Five Program. There are air charter operators subject to the Twelve-Five Program that serve as intermediary cargo carriers for many of our nation s overnight delivery carriers on a contract basis. These
Page 4 of 5 large carriers would be subject to the all-cargo program and, therefore, to the requirements of 1544.205 (e). These large all-cargo program carriers generally have employees that collect and sort their parcels for transportation by a Twelve-Five Program operator to the carrier s hub location for consolidation onto larger aircraft. This process then works in reverse for delivery of these parcels to their intended destination. Because these carriers serve as intermediaries- that is, they deal with the all-cargo program carrier s personnel at both ends of the transportation there should be no additional burden placed on the Twelve-Five Program operator due to this provision. There are other scenarios wherein a Twelve-Five Program carrier transfers cargo to either a full or all-cargo program carrier. NATA believes that Twelve-Five Program carriers meet the comparable security program standard and requests that the TSA state this in the preamble for a final rule in order to avoid confusion and multiple inquiries to the TSA regarding implementation of this section. SIDA NATA does not directly represent the operators of airports subject to Part 1542, which includes the Security Identification Display Area (SIDA). Furthermore, because the proposed expansion of the SIDA area is only required at airports already subject to Part 1542 that also support cargo operations by Full and All-Cargo security program carriers; it does not directly impact Twelve-Five Program carriers. As the TSA correctly stated in the preamble, Twelve- Five Program operators traditionally operate to and from smaller and rural airports and use the general aviation areas to load or unload their cargo. However, we would be remiss in our duty to our members based at or using these larger airports if we failed to comment on this provision. NATA has serious concerns over the cost to the airports, the short compliance timeframe, and the potential safety impact presented by this proposal. In the past, security requirements focused on airline passengers, and as a result airports were designed to segregate the passenger airline operations (and associated SIDA) away from the cargo and general aviation areas. In fact, cargo and general aviation ramps are close to, if not adjacent to, each other at many airports subject to Part 1542. There is a significant safety concern should a physical segregation of cargo and general aviation areas be necessary to secure the cargo SIDA. The SIDA expansion is an unfunded mandate that will cost millions of dollars to fully implement. Costs that cannot be recouped through government grants will be borne by airport users in the form of higher use fees or reductions in services offered by the airport. These impacts do not seem to have been considered.
Page 5 of 5 NATA appreciates the opportunity to submit the preceding comments for consideration by the TSA. Sincerely, Eric R. Byer Vice President