Notice2023-00647
Exemption for Exclusive Area Agreements at Certain Airports
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 17, 2023
Effective
January 17, 2023
Issuing agencies
Homeland Security DepartmentTransportation Security Administration
Abstract
The Transportation Security Administration (TSA) has statutory authority to grant an exemption from a regulation if TSA determines the exemption is in the public interest. TSA is granting an exemption from an aviation security regulation to permit eligible airport operators to enter into Exclusive Area Agreements (EAA) with Amazon Air, subject to requirements set forth in the Exemption. Also, TSA is rescinding an exemption issued on July 26, 2021, that permitted three airports to enter into EAAs with Amazon Air, as they are now covered by this exemption.
Full Text
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<title>Federal Register, Volume 88 Issue 10 (Tuesday, January 17, 2023)</title>
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[Federal Register Volume 88, Number 10 (Tuesday, January 17, 2023)]
[Notices]
[Pages 2633-2636]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00647]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
Exemption for Exclusive Area Agreements at Certain Airports
AGENCY: Transportation Security Administration, DHS.
[[Page 2634]]
ACTION: Notice.
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SUMMARY: The Transportation Security Administration (TSA) has statutory
authority to grant an exemption from a regulation if TSA determines the
exemption is in the public interest. TSA is granting an exemption from
an aviation security regulation to permit eligible airport operators to
enter into Exclusive Area Agreements (EAA) with Amazon Air, subject to
requirements set forth in the Exemption. Also, TSA is rescinding an
exemption issued on July 26, 2021, that permitted three airports to
enter into EAAs with Amazon Air, as they are now covered by this
exemption.
DATES: This Exemption becomes effective on January 17, 2023 and remain
in effect until modified or rescinded by TSA through a notice published
in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Eric Byczynski, Airport Security
Programs, Aviation Division, Policy, Plans, and Engagement;
<a href="/cdn-cgi/l/email-protection#c9acbba0aae7abb0aab3b0a7baa2a089bdbaa8e7ada1bae7aea6bf"><span class="__cf_email__" data-cfemail="3d584f545e135f445e4744534e56547d494e5c1359554e135a524b">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Purpose
TSA's regulations provide that airport operators may enter into
EAAs only with aircraft operators or foreign air carriers that have a
security program under 49 CFR part 1544 or 1546, subject to TSA
approval of an amendment to each airport operator's airport security
program (ASP). See 49 CFR 1542.111. Amazon Air is not an aircraft
operator or foreign air carrier, but conducts significant operations at
airports on behalf of aircraft operators. In July 2021,\1\ TSA
determined it was in the public interest to grant an exemption to
section 1542.111 to three airports to permit them to enter into EAAs
with Amazon Air. That exemption applied to Cincinnati/Northern Kentucky
International Airport (CVG), Baltimore/Washington International
Thurgood Marshall Airport (BWI), and Chicago Rockford International
Airport (RFD). TSA determined that the public interest was served
because the EAAs would create operational and economic efficiencies for
the airport operators and Amazon Air, to the economic benefit of the
public and without detriment to security. The exemption permitted the
airports to leverage significant private sector technologies with
respect to access control and monitoring systems that enhance security
and minimize insider threat. The exemption also facilitated the rapid
hiring of significant numbers of new personnel to support Amazon Air's
expanded presence at these locations, aiding the economy in the
surrounding areas. Finally, under the exemption, TSA exercises direct
regulatory oversight of Amazon Air concerning the security functions
they perform under the EAAs.
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\1\ See 86 FR 40072, Exemption for Exclusive Area Agreements at
Certain Airports (July 26, 2021).
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As discussed below, TSA has determined that the Exemption should be
issued for all airport operators that have an ASP as set forth in 49
CFR 1542.103(a)-(b), subject to TSA approval and the ability of the
airport operators and Amazon Air to satisfy the requirements set forth
in this Exemption.\2\ Furthermore, this Notice rescinds the previous
Exemption TSA published in 2021.
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\2\ Note that TSA will consider permitting other entities that
are similarly situated to Amazon Air to enter into EAAs with airport
operators.
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Background
Airport Security
TSA administers a comprehensive regulatory program to govern the
security of aviation, including standards for domestic airport
operators, domestic aircraft operators, and foreign air carriers. The
security requirements for domestic airport operators are codified at 49
CFR part 1542 and include minimum standards for access control
procedures, identification (ID) media, criminal history record checks
(CHRCs) of airport workers, law enforcement support, training,
contingency plans, TSA inspection authority, and incident management.
These regulations require airport operators to conduct specified
security measures in the secured area,\3\ air operations area (AOA),
and security identification display area (SIDA) of the airport. Part
1542 requires airports to develop and follow TSA-approved ASPs \4\ that
establish security procedures specific to each airport, and Security
Directives, which apply to all airports.
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\3\ See 49 CFR 1540.5 for definitions of terms used throughout
this exemption.
\4\ See 49 CFR 1542.105(a).
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TSA recognizes that, in certain circumstances, these security
measures may be performed more effectively or efficiently by another
TSA-regulated party such as an aircraft operator or foreign air
carrier, operating on the airport. Therefore, under 49 CFR 1542.111,
TSA may approve an amendment to an airport's ASP that permits the
airport operator to execute a legally binding EAA with an aircraft
operator \5\ or foreign air carrier.\6\ Under the EAA, the aircraft
operator or foreign air carrier assumes responsibility from the airport
operator for specified ASP security measures in all or specified
portions of the secured area, AOA, or SIDA.\7\ TSA requires the EAA to
be in writing, and signed by the airport operator and the aircraft
operator or foreign air carrier.\8\ TSA also prescribes in detail the
required contents of the EAA, including a description of the measures
that become the responsibility of the aircraft operator or foreign air
carrier.\9\
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\5\ See 49 CFR part 1544.
\6\ See 49 CFR part 1546.
\7\ 49 CFR 1542.111(a).
\8\ 49 CFR 1542.111(b).
\9\ Id.
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EAAs are an established part of TSA's regulatory structure for
airport operators, and have been commonly used since 1978.\10\
Currently, there are more than 70 EAAs in place between aircraft
operators or foreign air carriers and domestic airport operators. A
typical example for the use of an EAA is where an entire airport
terminal is serviced exclusively by one aircraft operator. At these
locations, TSA conducts standard compliance inspections, and may issue
violations of the security standard set forth in the EAA against the
aircraft operator or foreign air carrier that holds the EAA.
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\10\ See 43 FR 60792 (Dec. 28, 1978).
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An ``authorized representative'' is a person who performs TSA-
required security measures as an agent of a TSA-regulated party.
Although the authorized representative may perform the measures, the
TSA-regulated party remains responsible for completion, and TSA holds
the TSA-regulated party primarily accountable through enforcement
action of any violations. TSA may also hold the authorized
representative accountable if it causes the regulated party's
violation.\11\
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\11\ See 49 CFR 1540.105.
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Entities Subject to the Exemption
This Exemption applies to airport operators with a complete or
supporting ASP as set forth in 49 CFR 1542.103(a) and (b), and Amazon
Air. Amazon Air is a subsidiary of <a href="http://Amazon.com">Amazon.com</a>, Inc., an American
multinational technology company based in Seattle, Washington engaged
in e-commerce, cloud computing, digital streaming, artificial
intelligence, and cargo shipping. Amazon reports that less than 20
percent of Amazon's cargo is shipped by air. Due in part, however, to
the COVID-19 public health crisis and impact on the economy, cargo
shipment has increased dramatically, with a corresponding relative
increase in the total volume of air cargo. The increases are due, in
part, to the COVID pandemic, the public's heightened
[[Page 2635]]
reliance on online shopping for basic goods, and the Nation's need to
move supplies quickly. Amazon Air estimates that these trends will not
significantly diminish when the COVID pandemic subsides.
Amazon Air maintains operations at various domestic and
international airports. Amazon Air owns air cargo aircraft, but does
not operate the aircraft itself and is not an aircraft operator for
purposes of TSA's regulations. Amazon Air leases the aircraft to
certain aircraft operators holding TSA full all-cargo security
programs.\12\ Amazon Air then acts as an authorized representative for
these full all-cargo aircraft operators \13\ at certain airports.
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\12\ See 49 CFR 1544.101(h) for scope of a full all-cargo
security program.
\13\ These full all-cargo aircraft operators include Atlas Air,
Air Transport International, ABX, Inc., and Sun Country Airlines.
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As an authorized representative, Amazon Air performs security
functions under TSA's Full All-Cargo Aircraft Operator Standard
Security Program on behalf of the aircraft operators, including the
responsibility for preventing access to both aircraft and the cargo
bound for those aircraft, and providing the Ground Security
Coordinator, the individual at the facility responsible for
coordinating these security responsibilities. Amazon Air has also
assumed security responsibility for performing cargo acceptance and
chain of custody; cargo screening, buildup, and consolidation;
recordkeeping; cargo training; aircraft searches; screening jump
seaters \14\ and their property; incident reporting; comparing jump
seaters and individuals who have access to aircraft and cargo against
watchlists; and participation in table top exercises.
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\14\ The term `jump seater' refers to an off duty commercial
pilot who is permitted to travel by using the jumpseat in the
cockpit of a commercial aircraft operator.
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To address the current and anticipated demand, Amazon Air is
increasing use of its own employees for company services and
operations, rather than contracting out for services. Thus, Amazon Air
will quickly hire new employees as it expands its operations at
regulated airports. Hiring surges can occur at all airports throughout
the year due to seasonal changes, construction, or other matters. Most
airports can plan ahead for these surges to ensure sufficient staffing
in the airport badging offices to begin the vetting process and issue
ID media to new employees. However, when a new or existing employer has
a significant, sudden increase in employees, all airport vendors can be
adversely affected by the strain this places on the airport badging
system. It takes significant time to collect the biometric and
biographic information needed to initiate CHRCs and security threat
assessments (STAs), adjudicate CHRCs, and issue the ID media.
Amazon Air has represented to TSA that it has the capability and
capacity to assume security responsibilities at other locations in
addition to CVG, BWI, and RFI, including ensuring physical control of
access points; adjudicating CHRCs for disqualifying offenses and
submitting STAs for its employees; issuing ID media; and conducting ID
media accountability audits. Amazon Air possesses sophisticated access
control and monitoring systems that enhance security by significantly
restricting access to cargo and aircraft. As a subsidiary of a
profitable, private sector leader in technology, Amazon Air benefits
from ample resources to purchase advanced equipment as needed, without
regard to local government budget restrictions that many airports face.
This factor provides a level of assurance that the security capability
will remain consistent and substantial. Amazon Air's independent
economic stability also provides a level of assurance that it will be
able to quickly obtain any necessary expertise to carry out all of the
EAA functions at additional locations going forward.
Authority and Determination
TSA may grant an exemption from a regulation if TSA determines that
the exemption is in the public interest.\15\ TSA finds this exemption
to be in the public interest for several reasons. First, TSA has
evaluated Amazon Air's security apparatus with respect to access
control and monitoring, vetting and ID media issuance, and cargo
management and movement, and determined it to be modern, strong, and
resilient. Second, Amazon Air's significant personnel expansion at
airports may strain the resources of airport operator and aircraft
operator badging offices, adversely affecting other airport vendors and
limiting new hire capability. Amazon Air's ability under an EAA to
initiate the employee vetting functions that the airport authorities
would otherwise be required to conduct will more efficiently manage
volume as needed. This factor should reap economic benefits for the
surrounding areas in terms of employment, and to other airport vendors
who will not experience adverse effects from a sudden increase in
airport ID media issuance. Moreover, extending the authorities under an
EAA to Amazon Air at additional airport locations is consistent with
Executive Order 13725 \16\ to promote competition and reduce regulatory
restrictions where possible. Finally, under an EAA, TSA will have
direct oversight of Amazon Air's security activities, rather than
indirectly through an aircraft operator, for which Amazon Air is an
authorized representative. Given the scale of Amazon Air's commercial
activities and physical infrastructure that must be secured at these
airports, TSA compliance oversight will be more efficient and effective
if conducted directly over Amazon Air.
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\15\ See 49 U.S.C. 114(q).
\16\ Steps to Increase Competition and Better Inform Consumers
and Workers to Support Continued Growth of the American Economy,
April 15, 2016.
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Therefore, TSA has determined that it is in the public interest to
grant eligible airport operators an exemption from the provision in 49
CFR 1542.111 that limits the persons with whom an airport operator may
execute an EAA to aircraft operators and foreign air carriers. Under
this Exemption and in accordance with the requirements set forth below,
eligible airport operators may enter into an EAA with Amazon Air.
First, Amazon Air will assume responsibility for the vetting and
identification media requirements that apply to individuals with
unescorted access to the SIDA. These requirements include collecting
and transmitting biographic and biometric information needed to conduct
CHRCs, a check of government watchlists, and an immigration check.
Also, Amazon Air will issue airport-approved ID media to the
individuals who successfully complete the vetting process.
Second, at least 45 days prior to submitting the EAA/ASP amendment
to the TSA Federal Security Director (FSD) at the airport for approval,
the airport operator must notify the FSD and TSA's Assistant
Administrator of Policy, Plans, and Engagement in writing, stating its
interest in executing an EAA and requesting any documentation the
parties must have to move forward with the EAA. Note that this 45-day
notice provision is currently required when an airport operator seeks
to amend its ASP. This 45-day notice will provide TSA sufficient time
to evaluate the necessity and advisability of the EAA at that location.
Third, the airport operator and Amazon Air must first obtain all
information from TSA that is necessary to execute the EAA prior to
executing it. For instance, the parties must have the most recent EAA
template issued by
[[Page 2636]]
TSA, an approved Alternative Measure on file regarding Amazon-issued ID
media, and a temporary technical policy regarding STA submissions.
Exemption
1. This Exemption applies to airport operators regulated under 49
CFR 1542.103(a)-(b).
2. The Exemption takes effect on January 17, 2023.
3. For the duration of this Exemption, the eligible airport
operators may apply for an amendment to their airport security program
that permits the airport operator to enter into an EAA in accordance
with 49 CFR 1542.111 with Amazon Air, notwithstanding that Amazon Air
is not a TSA-regulated aircraft operator or foreign air carrier.
4. The airport operator must provide written notice of its intent
to seek an EAA and ASP Amendment to the FSD and TSA's Assistant
Administrator for Policy, Plans, and Engagement at least 45 days prior
to submitting the EAA and ASP amendment.
5. The airport operator may not execute the EAA with Amazon Air
until the airport operator and Amazon Air have received all information
from TSA that is necessary to execute the EAA. Each airport operator
seeking the EAA must receive an Alternative Measure that permits the
airport operator to designate Amazon ID media as airport-approved. TSA
may also require additional documentation to be on file as
circumstances warrant.
6. The terms of the EAA replace requirements set forth in 49 CFR
part 1542 so long as Amazon Air complies with the EAA.
7. The EAA must require Amazon Air to comply with all relevant
Security Directives and Emergency Amendments issued by TSA.
8. Amazon Air may begin performing as an EAA-holder on the date on
which TSA approves an amendment to the respective airport operator's
airport security program implementing each executed EAA.
9. The Exemption will remain in effect while the airport operator's
TSA-approved airport security program remains in effect. TSA may direct
revisions to the ASP amendment and EAA for security reasons in
accordance with 49 CFR 1542.105(c). TSA may rescind the ASP amendment
and EAA, and may rescind or modify the Exemption, with regard to one or
more of the covered airport operators, at any time.
Dated: January 10, 2023.
David P. Pekoske,
Administrator.
[FR Doc. 2023-00647 Filed 1-13-23; 8:45 am]
BILLING CODE 9110-05-P
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</html>Indexed from Federal Register on January 17, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.