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25 October 2006
[Federal Register: October 25, 2006 (Volume 71, Number 206)]
[Rules and Regulations]
[Page 62545-62550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25oc06-8]
[[Page 62545]]
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Part IV
Department of Homeland Security
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Transportation Security Administration
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49 CFR Parts 1544, 1546, and 1548
Air Cargo Security Requirements; Compliance Dates; Amendment; Interim
Final Rule
[[Page 62546]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1544, 1546, and 1548
[Docket No. TSA-2004-19515; Amendment Nos. 1544-6, 1546-3, and 1548-3]
RIN 1652-AA52
Air Cargo Security Requirements; Compliance Dates; Amendment
AGENCY: Transportation Security Administration (TSA), DHS.
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule (IFR) amends the Air Cargo Security
Requirements final rule (Air Cargo Final Rule) (published May 26, 2006,
and corrected in June 2006) by extending the compliance dates by which
certain requirements must be completed. TSA has concluded that the
regulated community will be unable to meet some deadlines in the Air
Cargo Final Rule because of the large number of employees and agents
subject to the requirements. TSA is, therefore, extending dates for the
following requirements: That aircraft operators, foreign air carriers,
and indirect air carriers (IACs) ensure that their employees and agents
with unescorted access to cargo successfully complete a Security Threat
Assessment (STA); that IACs ensure that their employees and agents
performing security-related duties are trained in the IAC's security
program; and that airport operators ensure that individuals with
unescorted access to expanded Security Identification Display Areas
(SIDA) are subjected to a criminal history records check (CHRC) and a
name-based security threat assessment (STA), receive proper security
training, and hold appropriate personnel identification.
DATES: Effective Date: This rule is effective October 23, 2006.
Comment Date: Comments must be received by December 26, 2006.
Compliance Dates: Compliance date for STAs for employees under
Sec. Sec. 1544.228, 1546.213, 1548.15, and for IAC proprietors,
general partners, officers, directors and certain owners of the entity
under Sec. 1548.16: Changed from December 1, 2006 to March 15, 2007.
Compliance date for STAs for agents under Sec. Sec. 1544.228,
1546.213 and 1548.15: Changed from December 1, 2006 to June 15, 2007.
Compliance date for training of IAC employees under Sec. Sec.
1548.11: Remains November 22, 2006.
Compliance date for training of IAC agents Sec. Sec. 1548.11:
Changed from November 22, 2006 to June 15, 2007.
Compliance date for submission and approval of extension of Secure
Identification Display Area (SIDA) boundaries to cargo areas under
Sec. 1542.205(a)(2) and (3): Remains October 23, 2006.
Compliance date for full compliance with requirements for
individuals with unescorted access to expanded SIDA under Sec. Sec.
1542.205(b)(2), 1542.209, 1542.211, 1542.213, and Security Directives:
Changed from October 23, 2006 to January 22, 2007.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, using any one of the following methods:
Comments Filed Electronically: You may submit comments through the
docket Web site at http://dms.dot.gov You also may submit comments through the Federal Rulemaking portal at http://www.regulations.gov.
Comments Submitted by Mail, Fax, or In Person: Address or deliver
your written, signed comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001; Fax: 202-493-2251.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Tamika McCree, Office of
Transportation Security Network Management (TSA-28), Transportation
Security Administration, 601 South 12th Street, Arlington, VA 22202;
(571-227-2632); tamika.mccree@dhs.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
This interim final rule is being adopted without prior notice and
prior public comment. However, to the maximum extent possible, TSA will
provide an opportunity for public comment on regulations issued without
prior notice. Accordingly, TSA invites interested persons to
participate in this rulemaking by submitting written comments, data, or
views. We also invite comments relating to the economic, environmental,
energy, or federalism impacts that might result from adopting the
proposals in this document. See ADDRESSES above for information on
where to submit comments.
With each comment, please include your name and address, identify
the docket number at the beginning of your comments, and give the
reason for each comment. The most helpful comments reference a specific
portion of the rulemaking, explain the reason for any recommended
change, and include supporting data. You may submit comments and
material electronically, in person, by mail, or fax as provided under
ADDRESSES, but please submit your comments and material by only one
means. If you submit comments by mail or delivery, submit them in two
copies, in an unbound format, no larger than 8.5 by 11 inches, suitable
for copying and electronic filing.
If you want TSA to acknowledge receipt of comments submitted by
mail, include with your comments a self-addressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it to you.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information (SSI).\1\ TSA will consider all comments received
on or before the closing date for comments and will consider comments
filed late to the extent practicable. The docket is available for
public inspection before and after the comment closing date.
---------------------------------------------------------------------------
\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
Upon receipt of such comments, TSA will not place the comments in
the public docket and will handle them in accordance with applicable
safeguards and restrictions on access. TSA will hold them in a separate
file to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
If TSA receives a request to
[[Page 62547]]
examine or copy this information, TSA will treat it as any other
request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and
the Department of Homeland Security's (DHS's) FOIA regulation found in
6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477), or you may visit http://dms.dot.gov
.
You may review the comments in the public docket by visiting the
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The Dockets Office is located on the plaza level of
the Nassif Building at the Department of Transportation address,
previously provided under ADDRESSES. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); (2) Accessing the Government Printing Office's Web page at http://
http://www.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov
and accessing the link for ``Research Center'' at the top
of the page.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/law_lib.html
.
Background
On May 26, 2006, TSA published a final rule in the Federal Register
(71 FR 30478) on air cargo security requirements (Air Cargo Final Rule)
to enhance and improve the security of air cargo transportation.
Sections 1544.228, 1546.213, 1548.15, and 1548.16 of the final rule
incorrectly stated that the deadline for completion of the security
threat assessments (STAs) required by those sections was November 22,
2006 (71 FR 30478, 30511-12 and 30516). This conflicted with the DATES
section of the rule, which listed the compliance date for STAs as
December 1, 2006. On June 2, 2006, TSA issued a notice correcting the
deadline for STAs in the pertinent regulatory text to December 1, 2006
(71 FR 31964). Also, on June 8, 2006 (71 FR 33254), TSA published an
additional correction notice that added an amendatory instruction in
Sec. 1548.1 to remove the word ``passenger'' that had inadvertently
been included in the Air Cargo Final Rule.
Requirements of the Air Cargo Final Rule
The Air Cargo Final Rule, in part, requires that aircraft
operators, foreign air carriers, and indirect air carriers (IACs)
ensure that security threat assessments (STAs) are completed on their
employees and agents with unescorted access to cargo under Sec. Sec.
1544.228, 1546.213, and 1548.15, and on proprietors, general partners,
officers, directors, and certain owners of an IAC entity under Sec.
1548.16. The compliance date for these sections (following the June 2,
2006 correction) is December 1, 2006. In addition, Sec. 1548.11
requires that by November 22, 2006, IACs must ensure that no employee
or agent may perform any security-related duties under the IAC's
security program unless that employee or agent is properly trained.
Another requirement of the Air Cargo Final Rule provides that each
part of the air operations area in an airport that is regularly used to
load or unload cargo from an aircraft, and areas where cargo is present
after a carrier or IAC accepts it, must be a security identification
display area (SIDA) (See Sec. Sec. 1542.205(a)(2) and (3)). Under
requirements in effect before publication of the Air Cargo Final Rule,
airport operators must ensure that each individual with unescorted
access to the SIDA is subject to a criminal history records check
(CHRC), holds an appropriate identification, successfully completes
training in accordance with the TSA-approved curriculum, and undergoes
a name-based STA by TSA (See Sec. Sec. 1542.209, 1542.211 and
1542.213(b); and Security Directives).\2\ The current deadline for all
of the above SIDA requirements is October 23, 2006.
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\2\ Security Directives constitute sensitive security
information (SSI) that can be disclosed only to persons with a need
to know, in accordance with 49 CFR part 1520.
---------------------------------------------------------------------------
On June 1, 2006, TSA issued proposed revised and new security
programs for aircraft operators, foreign air carriers (FACs), and IACs
that would implement the requirements of the Air Cargo Final Rule.\3\
TSA received extensive comments to the proposed revised and new
security programs.
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\3\ Security programs constitute SSI that can be disclosed only
to persons with a need to know, in accordance with 49 CFR part 1520.
Therefore, the security programs could only be distributed to
affected aircraft operators, foreign air carriers, and IACs for
comment.
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STAs and Training for Employees and Agents of Aircraft Operators,
Foreign Air Carriers, and IACs
Some commenters were very concerned about their ability to comply
with the deadlines for completion of STAs and training for the
employees and numerous agents of the regulated parties. Under the final
rule, the deadline for completion of training is November 22, 2006.
Agents are not direct employees of the air carriers, nor are they
directly regulated by TSA. Rather, ``agents'' are entities under
contract with the air carriers to perform a security responsibility.
For example, an IAC may contract with a cartage agent to move cargo
from a warehouse to an airport. An IAC may use the services of many
agents for cartage and warehousing, and each of those cartage and
warehousing agents may serve multiple IACs. IACs are responsible for
ensuring that their agents are properly trained to perform security
responsibilities, and actually carry out the IAC's security program.
Commenters raised concerns as to how these agents will determine
whether or not the driver picking up, or delivering cargo, actually has
undergone an STA and has been trained in the IAC security program. TSA
is enhancing the IAC Management System (IACMS) to process STA
applications and results, and is providing online training for
employees and agents. However, only IACs will have access to the IACMS
data base to determine if a driver has an STA. Commenters stated that
it would be helpful to have a system that will allow them to identify
and verify those individuals with the requisite STAs and training.
Otherwise, in order for an IAC to ensure compliance with the Air Cargo
Final Rule and their security program, the IAC would have to conduct an
STA
[[Page 62548]]
and train a driver who may already have undergone an STA and had the
training. This would be unnecessary and duplicative.
This is an important issue that bears both on the regulated
parties' compliance and on aviation security. In recognition of this
complex issue, and to facilitate a high level of compliance with the
requirements of the Air Cargo Final Rule, TSA is extending the
deadlines for STAs and training, as discussed below. TSA has provided
more time for the STAs and training of the agents of airport operators,
FACs and IACs than for employees because there are fewer employees than
agents, and airport operators and air carriers have more control over
their own direct employees, than agents.
CHRCs, STAs, and Identification Media for SIDA Access; Training
TSA has also received comments indicating that there will be
hundreds, if not thousands, of airport employees who will be affected
by the expansion of SIDA to include air operation areas regularly used
to load cargo on, or unload cargo from, an aircraft that is operated
under a full program or a full all-cargo program as specified in Sec.
1542.205. These comments indicate that it will not be possible to
subject each of these individuals to a CHRC, a name-based STA, SIDA
training, or the appropriate personnel identification requirements by
October 23, 2006.
Extension of Compliance Dates
For the above stated reasons, TSA has determined that the
compliance date for STAs for employees of aircraft operators, FACs, and
IACs under Sec. Sec. 1544.228, 1546.213, 1548.15, and 1548.16 will be
extended to March 15, 2007. STAs for agents of these entities will be
extended to June 15, 2007.
The compliance date of November 22, 2006 for training is still
applicable to employees of aircraft operators, foreign air carriers and
IACs under Sec. 1548.11. Because of the high volume of agents and the
complications associated with carriers trying to determine which agents
need STAs and training, however, TSA is extending the deadline for the
training of IAC agents from November 22, 2006 to June 15, 2007.
Based on comments received, TSA is also extending the deadlines for
subjecting each individual with unescorted access to a SIDA to a CHRC,
to a name-based STA, to SIDA training, or to personnel identification
requirements from October 23, 2006 to January 22, 2007. TSA is not
changing the compliance date for submission and approval of the new
SIDA boundaries, as there is no need to do so. Airport operators will
already know where cargo is present and being loaded and unloaded;
therefore, they will be able to comply with the October 23, 2006
compliance date.
Summary of Compliance Date Changes
TSA has made the following amendments to the Air Cargo Final Rule
text: \4\
---------------------------------------------------------------------------
\4\ All of the compliance dates were stated in the Air Cargo
Final Rule text, except the requirement that airport operators
extend the boundaries of the SIDA to cargo operations. The
compliance date for this requirement is the effective date of the
Air Cargo Final Rule: October 23, 2006.
----------------------------------------------------------------------------------------------------------------
Air Cargo Final Rule (May 26,
STAs/training and other requirements 2006), as amended (June 2, 2006), Amended compliance dates
compliance dates
----------------------------------------------------------------------------------------------------------------
STAs for employees of aircraft December 1, 2006................... March 15, 2007.
operators, foreign air carriers and
indirect air carriers (IACs) under
Sec. Sec. 1544.228, 1546.213,
1548.15.
STAs for agents of aircraft operators, December 1, 2006................... June 15, 2007.
foreign air carriers and IACs under
Sec. Sec. 1544.228, 1546.213,
1548.15.
STAs for IAC proprietors, general December 1, 2006................... March 15, 2007.
partners, officers, directors and
certain owners under Sec. 1548.16.
Training of IAC employees under Sec. November 22, 2006.................. Same.
1548.11.
Training of IAC agents under Sec. November 22, 2006.................. June 15, 2007.
1548.11.
Establishing the boundaries of SIDA October 23, 2006................... Same.
for air cargo areas under Sec.
1542.205(a)(2).
CHRC, training, name-based STAs, and October 23, 2006................... January 22, 2007.
ID requirements for individuals with
unescorted access to expanded SIDA
under Sec. Sec. 1542.205,
1542.209, 1542.211, 1542.213, and SDs.
----------------------------------------------------------------------------------------------------------------
Good Cause for Immediate Adoption and Immediate Effective Date
TSA is issuing this amendment without providing the public prior
notice and the opportunity for comment, and it has an effective date
less than 30 days after publication in the Federal Register.
Sections 553(b) and (d) of the Administrative Procedure Act (APA)
(5 U.S.C. 553) authorize agencies to dispense with certain notice
procedures for rules when they find good cause to do so. Under section
553(b), the requirements of notice and opportunity for comment do not
apply when the agency for good cause finds that those procedures are
``impracticable, unnecessary, or contrary to the public interest.''
Section 553(d) allows an agency, upon finding good cause, to make a
rule effective immediately, thereby avoiding the 30-day delayed
effective date requirement in section 553.
TSA finds that providing an opportunity for prior notice and public
comment on the extensions of the compliance dates in the provisions of
the Air Cargo Final Rule identified in the IFR is unnecessary and
contrary to the public interest. As detailed above, TSA believes that:
(a) Regulated parties will have significant difficulty in complying
with the regulations in the time specified; (b) no party will be
adversely affected by the extensions; (c) the lack of notice will not
cause any hardship; and (d) it would be impracticable to provide timely
notice and opportunity to comment prior to the implementation dates
currently set forth in the regulations.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.)
requires that a Federal agency consider the impact of paperwork and
other information collection burdens imposed on the public and, under
the provisions of PRA section 3507(d), obtain approval from the Office
of Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. TSA has determined
that there are no current or new information collection requirements
associated with this rule.
[[Page 62549]]
Regulatory Analyses
Executive Order 12866 Assessment
In conducting these analyses, TSA has determined that this
rulemaking is not a ``significant regulatory action'' as defined in the
Executive Order.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), requires agencies to perform a review to determine
whether a proposed or final rule will have a significant economic
impact on a substantial number of small entities when the
Administrative Procedure Act (APA) requires notice and comment
rulemaking. Consistent with the APA and for the reasons provided under
``Good Cause for Immediate Adoption,'' TSA is issuing this rule as an
interim final rule. Accordingly, the regulatory flexibility analysis as
described in the RFA is not required.
TSA notes, however, that we have analyzed the small business
impacts of the air cargo rulemaking that this IFR amends. A Final
Regulatory Flexibility Analysis (FRFA) was placed on the public docket
in the Regulatory Impact Analysis document for the Air Cargo Final Rule
issued on May 26, 2006. The extension of the compliance dates in this
IFR provides more flexibility than the final rule.
International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this rulemaking and has determined that it will not create
any unnecessary obstacles to foreign commerce.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 is intended, among other
things, to curb the practice of imposing unfunded Federal mandates on
State, local, and tribal governments. Title II of the Act requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule that may result
in a $100 million or more expenditure (adjusted annually for inflation)
in any one year by State, local, and tribal governments, in the
aggregate, or by the private sector; such a mandate is deemed to be a
``significant regulatory action.''
This rulemaking does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply and TSA has not
prepared a statement under the Act.
Executive Order 13132, Federalism
TSA has analyzed this final rule under the principles and criteria
of Executive Order 13132, Federalism. We determined that this action
will not have a substantial direct effect on the States, or the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and, therefore, does not have federalism implications.
Environmental Analysis
TSA has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.
Energy Impact Analysis
The energy impact of the action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
List of Subjects
49 CFR Part 1544
Air carriers, Aircraft, Aviation safety, Freight forwarders,
Incorporation by reference, Reporting and recordkeeping requirements,
Security measures.
49 CFR Part 1546
Aircraft, Aviation safety, Foreign Air Carriers, Incorporation by
reference, Reporting and recordkeeping requirements, Security measures.
49 CFR Part 1548
Air transportation, Reporting and recordkeeping requirements,
Security measures.
The Amendment
0
For the reasons set forth above, the Transportation Security
Administration amends title 49 of the Code of Federal Regulations,
parts 1544, 1546, and 1548, as follows:
PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL
OPERATORS
0
1. The authority citation for part 1544 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.
0
2. Revise Sec. 1544.228(d) to read as follows:
Sec. 1544.228 Access to cargo: Security threat assessments for cargo
personnel in the United States.
* * * * *
(d) Operators must comply with the requirements of this section not
later than March 15, 2007, for direct employees and not later than June
15, 2007, for agents.
PART 1546--FOREIGN AIR CARRIER SECURITY
0
3. The authority citation for part 1546 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44914, 44916-44917, 44935-44936, 44942, 46105.
0
4. Revise Sec. 1546.213(d) to read as follows:
Sec. 1546.213 Access to cargo: Security threat assessments for cargo
personnel in the United States.
* * * * *
(d) Operators must comply with the requirements of this section not
later than March 15, 2007, for direct employees and not later than June
15, 2007, for agents.
PART 1548--INDIRECT AIR CARRIER SECURITY
0
5. The authority citation for part 1548 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44913-44914,
44916-44917, 44932, 44935-44936, 46105.
0
6. Revise Sec. 1548.11(d) to read as follows:
Sec. 1548.11 Training and knowledge for individuals with security-
related duties.
* * * * *
(d) Operators must comply with the requirements of this section not
later than November 22, 2006, for direct employees and not later than
June 15, 2007, for agents.
0
7. Revise Sec. 1548.15(d) to read as follows:
Sec. 1548.15 Access to cargo: Security threat assessments for
individuals having unescorted access to cargo.
* * * * *
[[Page 62550]]
(d) Operators must comply with the requirements of this section not
later than March 15, 2007, for direct employees and not later than June
15, 2007, for agents.
0
8. Revise Sec. 1548.16(a) to read as follows:
Sec. 1548.16 Security threat assessments for each proprietor, general
partner, officer, director, and certain owners of the entity.
(a) Each indirect air carrier, or applicant to be an indirect air
carrier, must ensure that each proprietor, general partner, officer,
director, and owner of the entity has successfully completed a Security
Threat Assessment under part 1540, subpart C, of this chapter. Each
indirect air carrier must comply with the requirements of this section
not later than March 15, 2007.
* * * * *
Issued in Arlington, Virginia, on October 20, 2006.
Robert D. Jamison,
Deputy Administrator.
[FR Doc. 06-8904 Filed 10-23-06; 2:47 pm]
BILLING CODE 9110-05-P