On September 16, 2009, the Department of Homeland Security’s Transportation Security Administration (TSA) issued its interim final rule on Air Cargo Screening for passenger aircraft with a request for public comments. The rule will be effective on November 16, 2009. Public comments are also due on November 16, 2009.

The rule is intended to carry out portions of the Implementing the Recommendations of the 9/11 Commission Act of 2007, which requires that affected U.S. aircraft operators and foreign air carriers by February 3, 2009 screen at least 50% of cargo transported on passenger aircraft and by August 3, 2010 screen 100%.¹ This rule applies only to cargo loaded in the U.S.; it does not apply to U.S. or foreign aircraft operators when they load cargo outside the U.S. and transport it to the U.S. It also does not apply to all-cargo operations or general-aviation operations.

Currently, cargo screening² may be conducted by an aircraft operator on an airport, or another aircraft operator or foreign air carrier under the Aircraft Operator Standard Security Program or Foreign Air Carrier Model Security Program, or an indirect air carrier (IAC). TSA has determined that the efforts of these groups achieved compliance with the 50% standard. The new rule seeks to fulfill the 100% standard by establishing the certified cargo screening program (CCSP) to allow entities other than aircraft operators to conduct screening off-airport in the U.S. Facilities upstream in the air cargo supply chain – shippers, manufacturers, warehousing entities, distributors, third party logistics companies and IACs that are located in the U.S. – may apply to TSA to become “certified cargo screening facilities” (CCSFs). Airport operators that screen cargo off-airport must also become CCSFs in order to screen cargo for transport on passenger aircraft.

CCSF applicants must submit to TSA an application for certification of a single facility, including a TSA-approved validator’s³ evaluation of the applicant’s security measures. Once certified, the CCSFs are responsible for the following:

• Implementing the CCSP that TSA develops to deter the carriage of explosives or incendiaries onboard aircraft;
• Appointing security coordinators;
• Ensuring that certain employees successfully undergo a TSA-conducted Security Threat Assessment;
• Adhering to strict physical and access control measures for the storage, handling and screening of cargo;
• Implementing chain of custody requirements which must begin when the cargo is screened and remain in place until the cargo is given to the aircraft operator for transport on a passenger aircraft; and
• Applying for recertification every 36 months.

At full implementation, TSA estimates that the 4.3 billion pounds of cargo shipped on passenger aircraft annually will be screened as follows:

• Aircraft operators will screen 30%
• CCSFs using screening equipment will screen 38%
• CCSFs using physical search methods will screen 32%

TSA estimates that the aggregate costs over 10 years (undiscounted) will be $2.8 billion. Additionally, TSA expects that industry will bear a cost for delayed shipment of cargo estimated at $291.1 million over 10 years (undiscounted).

Please contact your SGR counsel or one of the authors if you are interested in filing public comments on the TSA interim final rule or if you have questions about how this rule might affect your company or industry.

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