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Electronic Code of Federal Regulations

e-CFR Data is current as of August 21, 2014

Title 49Subtitle BChapter XIISubchapter C → Part 1540


Title 49: Transportation


PART 1540—CIVIL AVIATION SECURITY: GENERAL RULES


Contents

Subpart A—General

§1540.1   Applicability of this subchapter and this part.
§1540.3   Delegation of authority.
§1540.5   Terms used in this subchapter.

Subpart B—Responsibilities of Passengers and Other Individuals and Persons

§1540.101   Applicability of this subpart.
§1540.103   Fraud and intentional falsification of records.
§1540.105   Security responsibilities of employees and other persons.
§1540.107   Submission to screening and inspection.
§1540.109   Prohibition against interference with screening personnel.
§1540.111   Carriage of weapons, explosives, and incendiaries by individuals.
§1540.113   Inspection of airman certificate.
§1540.115   Threat assessments regarding citizens of the United States holding or applying for FAA certificates, ratings, or authorizations.
§1540.117   Threat assessments regarding aliens holding or applying for FAA certificates, ratings, or authorizations.

Subpart C—Security Threat Assessments

§1540.201   Applicability and terms used in this subpart.
§1540.203   Security threat assessment.
§1540.205   Procedures for security threat assessment.
§1540.207   [Reserved]
§1540.209   Fees for security threat assessment.

Subpart D—Responsibilities of Holders of TSA-Approved Security Programs

§1540.301   Withdrawal of approval of a security program.
§1540.303   [Reserved]

Authority: 49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-44914, 44916-44918, 44935-44936, 44942, 46105.

Source: 67 FR 8353, Feb. 22, 2002, unless otherwise noted.

Subpart A—General

§1540.1   Applicability of this subchapter and this part.

This subchapter and this part apply to persons engaged in aviation-related activities.

§1540.3   Delegation of authority.

(a) Where the Administrator is named in this subchapter as exercising authority over a function, the authority is exercised by the Administrator or the Deputy Administrator, or any individual formally designated to act as the Administrator or the Deputy Administrator.

(b) Where TSA or the designated official is named in this subchapter as exercising authority over a function, the authority is exercised by the official designated by the Administrator to perform that function.

§1540.5   Terms used in this subchapter.

In addition to the terms in part 1500 of this chapter, the following terms are used in this subchapter:

Air operations area (AOA) means a portion of an airport, specified in the airport security program, in which security measures specified in this part are carried out. This area includes aircraft movement areas, aircraft parking areas, loading ramps, and safety areas, for use by aircraft regulated under 49 CFR part 1544 or 1546, and any adjacent areas (such as general aviation areas) that are not separated by adequate security systems, measures, or procedures. This area does not include the secured area.

Aircraft operator means a person who uses, causes to be used, or authorizes to be used an aircraft, with or without the right of legal control (as owner, lessee, or otherwise), for the purpose of air navigation including the piloting of aircraft, or on any part of the surface of an airport. In specific parts or sections of this subchapter, “aircraft operator” is used to refer to specific types of operators as described in those parts or sections.

Airport operator means a person that operates an airport serving an aircraft operator or a foreign air carrier required to have a security program under part 1544 or 1546 of this chapter.

Airport security program means a security program approved by TSA under §1542.101 of this chapter.

Airport tenant means any person, other than an aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter, that has an agreement with the airport operator to conduct business on airport property.

Airport tenant security program means the agreement between the airport operator and an airport tenant that specifies the measures by which the tenant will perform security functions, and approved by TSA, under §1542.113 of this chapter.

Approved, unless used with reference to another person, means approved by TSA.

Cargo means property tendered for air transportation accounted for on an air waybill. All accompanied commercial courier consignments, whether or not accounted for on an air waybill, are also classified as cargo. Aircraft operator security programs further define the term “cargo.”

Certified cargo screening facility (CCSF) means a facility certified by TSA to screen air cargo in accordance with part 1549. As used in this subchapter, “certified cargo screening facility” refers to the legal entity that operates a CCSF at a particular location.

Certified cargo screening program (CCSP) means the program under which facilities are authorized to screen cargo to be offered for transport on certain passenger aircraft in accordance with 49 CFR part 1549.

Checked baggage means property tendered by or on behalf of a passenger and accepted by an aircraft operator for transport, which is inaccessible to passengers during flight. Accompanied commercial courier consignments are not classified as checked baggage.

Escort means to accompany or monitor the activities of an individual who does not have unescorted access authority into or within a secured area or SIDA.

Exclusive area means any portion of a secured area, AOA, or SIDA, including individual access points, for which an aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter has assumed responsibility under §1542.111 of this chapter.

Exclusive area agreement means an agreement between the airport operator and an aircraft operator or a foreign air carrier that has a security program under parts 1544 or 1546 of this chapter that permits such an aircraft operator or foreign air carrier to assume responsibility for specified security measures in accordance with §1542.111 of this chapter.

FAA means the Federal Aviation Administration.

Flightcrew member means a pilot, flight engineer, or flight navigator assigned to duty in an aircraft during flight time.

Indirect air carrier (IAC) means any person or entity within the United States not in possession of an FAA air carrier operating certificate, that undertakes to engage indirectly in air transportation of property, and uses for all or any part of such transportation the services of an air carrier. This does not include the United States Postal Service (USPS) or its representative while acting on the behalf of the USPS.

Loaded firearm means a firearm that has a live round of ammunition, or any component thereof, in the chamber or cylinder or in a magazine inserted in the firearm.

Passenger seating configuration means the total maximum number of seats for which the aircraft is type certificated that can be made available for passenger use aboard a flight, regardless of the number of seats actually installed, and includes that seat in certain aircraft that may be used by a representative of the FAA to conduct flight checks but is available for revenue purposes on other occasions.

Private charter means any aircraft operator flight—

(1) For which the charterer engages the total passenger capacity of the aircraft for the carriage of passengers; the passengers are invited by the charterer; the cost of the flight is borne entirely by the charterer and not directly or indirectly by any individual passenger; and the flight is not advertised to the public, in any way, to solicit passengers.

(2) For which the total passenger capacity of the aircraft is used for the purpose of civilian or military air movement conducted under contract with the Government of the United States or the government of a foreign country.

Public charter means any charter flight that is not a private charter.

Scheduled passenger operation means an air transportation operation (a flight) from identified air terminals at a set time, which is held out to the public and announced by timetable or schedule, published in a newspaper, magazine, or other advertising medium.

Screening function means the inspection of individuals and property for weapons, explosives, and incendiaries.

Screening location means each site at which individuals or property are inspected for the presence of weapons, explosives, or incendiaries.

Secured area means a portion of an airport, specified in the airport security program, in which certain security measures specified in part 1542 of this chapter are carried out. This area is where aircraft operators and foreign air carriers that have a security program under part 1544 or 1546 of this chapter enplane and deplane passengers and sort and load baggage and any adjacent areas that are not separated by adequate security measures.

Security Identification Display Area (SIDA) means a portion of an airport, specified in the airport security program, in which security measures specified in this part are carried out. This area includes the secured area and may include other areas of the airport.

Standard security program means a security program issued by TSA that serves as a baseline for a particular type of operator. If TSA has issued a standard security program for a particular type of operator, unless otherwise authorized by TSA, each operator's security program consists of the standard security program together with any amendments and alternative procedures approved or accepted by TSA.

Sterile area means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator under part 1544 of this chapter or a foreign air carrier under part 1546 of this chapter, through the screening of persons and property.

Unescorted access authority means the authority granted by an airport operator, an aircraft operator, foreign air carrier, or airport tenant under part 1542, 1544, or 1546 of this chapter, to individuals to gain entry to, and be present without an escort in, secured areas and SIDA's of airports.

Unescorted access to cargo means the authority granted by an aircraft operator or IAC to individuals to have access to air cargo without an escort.

[67 FR 8353, Feb. 22, 2002, as amended at 67 FR 8209, Feb. 22, 2002; 71 FR 30507, May 26, 2006; 74 FR 47700, Sept. 16, 2009]

Subpart B—Responsibilities of Passengers and Other Individuals and Persons

§1540.101   Applicability of this subpart.

This subpart applies to individuals and other persons.

§1540.103   Fraud and intentional falsification of records.

No person may make, or cause to be made, any of the following:

(a) Any fraudulent or intentionally false statement in any application for any security program, access medium, or identification medium, or any amendment thereto, under this subchapter.

(b) Any fraudulent or intentionally false entry in any record or report that is kept, made, or used to show compliance with this subchapter, or exercise any privileges under this subchapter.

(c) Any reproduction or alteration, for fraudulent purpose, of any report, record, security program, access medium, or identification medium issued under this subchapter.

§1540.105   Security responsibilities of employees and other persons.

(a) No person may:

(1) Tamper or interfere with, compromise, modify, attempt to circumvent, or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure, or procedure implemented under this subchapter.

(2) Enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such areas.

(3) Use, allow to be used, or cause to be used, any airport-issued or airport-approved access medium or identification medium that authorizes the access, presence, or movement of persons or vehicles in secured areas, AOA's, or SIDA's in any other manner than that for which it was issued by the appropriate authority under this subchapter.

(b) The provisions of paragraph (a) of this section do not apply to conducting inspections or tests to determine compliance with this part or 49 U.S.C. Subtitle VII authorized by:

(1) TSA, or

(2) The airport operator, aircraft operator, or foreign air carrier, when acting in accordance with the procedures described in a security program approved by TSA.

§1540.107   Submission to screening and inspection.

(a) No individual may enter a sterile area or board an aircraft without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area or aircraft under this subchapter.

(b) An individual must provide his or her full name, as defined in §1560.3 of this chapter, date of birth, and gender when—

(1) The individual, or a person on the individual's behalf, makes a reservation for a covered flight, as defined in §1560.3 of this chapter, or

(2) The individual makes a request for authorization to enter a sterile area.

(c) An individual may not enter a sterile area or board an aircraft if the individual does not present a verifying identity document as defined in §1560.3 of this chapter, when requested for purposes of watch list matching under §1560.105(c), unless otherwise authorized by TSA on a case-by-case basis.

[73 FR 64061, Oct. 28, 2008]

§1540.109   Prohibition against interference with screening personnel.

No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.

§1540.111   Carriage of weapons, explosives, and incendiaries by individuals.

(a) On an individual's person or accessible property—prohibitions. Except as provided in paragraph (b) of this section, an individual may not have a weapon, explosive, or incendiary, on or about the individual's person or accessible property—

(1) When performance has begun of the inspection of the individual's person or accessible property before entering a sterile area, or before boarding an aircraft for which screening is conducted under this subchapter;

(2) When the individual is entering or in a sterile area; or

(3) When the individual is attempting to board or onboard an aircraft for which screening is conducted under §§1544.201, 1546.201, or 1562.23 of this chapter.

(b) On an individual's person or accessible property—permitted carriage of a weapon. Paragraph (a) of this section does not apply as to carriage of firearms and other weapons if the individual is one of the following:

(1) Law enforcement personnel required to carry a firearm or other weapons while in the performance of law enforcement duty at the airport.

(2) An individual authorized to carry a weapon in accordance with §§1544.219, 1544.221, 1544.223, 1546.211, or subpart B of part 1562 of this chapter.

(3) An individual authorized to carry a weapon in a sterile area under a security program.

(c) In checked baggage. A passenger may not transport or offer for transport in checked baggage or in baggage carried in an inaccessible cargo hold under §1562.23 of this chapter:

(1) Any loaded firearm(s).

(2) Any unloaded firearm(s) unless—

(i) The passenger declares to the aircraft operator, either orally or in writing, before checking the baggage, that the passenger has a firearm in his or her bag and that it is unloaded;

(ii) The firearm is unloaded;

(iii) The firearm is carried in a hard-sided container; and

(iv) The container in which it is carried is locked, and only the passenger retains the key or combination.

(3) Any unauthorized explosive or incendiary.

(d) Ammunition. This section does not prohibit the carriage of ammunition in checked baggage or in the same container as a firearm. Title 49 CFR part 175 provides additional requirements governing carriage of ammunition on aircraft.

[67 FR 8353, Feb. 22, 2002, as amended at 67 FR 41639, June 19, 2002; 70 FR 41600, July 19, 2005; 71 FR 30507, May 26, 2006]

§1540.113   Inspection of airman certificate.

Each individual who holds an airman certificate, medical certificate, authorization, or license issued by the FAA must present it for inspection upon a request from TSA.

§1540.115   Threat assessments regarding citizens of the United States holding or applying for FAA certificates, ratings, or authorizations.

(a) Applicability. This section applies when TSA has determined that an individual who is a United States citizen and who holds, or is applying for, an airman certificate, rating, or authorization issued by the Administrator, poses a security threat.

(b) Definitions. The following terms apply in this section:

Administrator means the Administrator of the Transportation Security Administration.

Assistant Administrator means the Assistant Administrator for Intelligence for TSA.

Date of service means—

(1) The date of personal delivery in the case of personal service;

(2) The mailing date shown on the certificate of service;

(3) The date shown on the postmark if there is no certificate of service; or

(4) Another mailing date shown by other evidence if there is no certificate of service or postmark.

Deputy Administrator means the officer next in rank below the Administrator.

FAA Administrator means the Administrator of the Federal Aviation Administration.

Individual means an individual whom TSA determines poses a security threat.

(c) Security threat. An individual poses a security threat when the individual is suspected of posing, or is known to pose—

(1) A threat to transportation or national security;

(2) A threat of air piracy or terrorism;

(3) A threat to airline or passenger security; or

(4) A threat to civil aviation security.

(d) Representation by counsel. The individual may, if he or she so chooses, be represented by counsel at his or her own expense.

(e) Initial Notification of Threat Assessment—(1) Issuance. If the Assistant Administrator determines that an individual poses a security threat, the Assistant Administrator serves upon the individual an Initial Notification of Threat Assessment and serves the determination upon the FAA Administrator. The Initial Notification includes—

(i) A statement that the Assistant Administrator personally has reviewed the materials upon which the Initial Notification was based; and

(ii) A statement that the Assistant Administrator has determined that the individual poses a security threat.

(2) Request for Materials. Not later than 15 calendar days after the date of service of the Initial Notification, the individual may serve a written request for copies of the releasable materials upon which the Initial Notification was based.

(3) TSA response. Not later than 30 calendar days, or such longer period as TSA may determine for good cause, after receiving the individual's request for copies of the releasable materials upon which the Initial Notification was based, TSA serves a response. TSA will not include in its response any classified information or other information described in paragraph (g) of this section.

(4) Reply. The individual may serve upon TSA a written reply to the Initial Notification of Threat Assessment not later than 15 calendar days after the date of service of the Initial Notification, or the date of service of TSA's response to the individual's request under paragraph (e)(2) if such a request was served. The reply may include any information that the individual believes TSA should consider in reviewing the basis for the Initial Notification.

(5) TSA final determination. Not later than 30 calendar days, or such longer period as TSA may determine for good cause, after TSA receives the individual's reply, TSA serves a final determination in accordance with paragraph (f) of this section.

(f) Final Notification of Threat Assessment—(1) In general. The Deputy Administrator reviews the Initial Notification, the materials upon which the Initial Notification was based, the individual's reply, if any, and any other materials or information available to him.

(2) Review and Issuance of Final Notification. If the Deputy Administrator determines that the individual poses a security threat, the Administrator reviews the Initial Notification, the materials upon which the Initial Notification was based, the individual's reply, if any, and any other materials or information available to him. If the Administrator determines that the individual poses a security threat, the Administrator serves upon the individual a Final Notification of Threat Assessment and serves the determination upon the FAA Administrator. The Final Notification includes a statement that the Administrator personally has reviewed the Initial Notification, the individual's reply, if any, and any other materials or information available to him, and has determined that the individual poses a security threat.

(3) Withdrawal of Initial Notification. If the Deputy Administrator does not determine that the individual poses a security threat, or upon review, the Administrator does not determine that the individual poses a security threat, TSA serves upon the individual a Withdrawal of the Initial Notification and provides a copy of the Withdrawal to the FAA Administrator.

(g) Nondisclosure of certain information. In connection with the procedures under this section, TSA does not disclose to the individual classified information, as defined in Executive Order 12968 section 1.1(d), and reserves the right not to disclose any other information or material not warranting disclosure or protected from disclosure under law.

[68 FR 3761, Jan. 24, 2003, as amended at 68 FR 49721, Aug. 19, 2003]

§1540.117   Threat assessments regarding aliens holding or applying for FAA certificates, ratings, or authorizations.

(a) Applicability. This section applies when TSA has determined that an individual who is not a citizen of the United States and who holds, or is applying for, an airman certificate, rating, or authorization issued by the FAA Administrator, poses a security threat.

(b) Definitions. The following terms apply in this section:

Assistant Administrator means the Assistant Administrator for Intelligence for TSA.

Date of service means—

(1) The date of personal delivery in the case of personal service;

(2) The mailing date shown on the certificate of service;

(3) The date shown on the postmark if there is no certificate of service; or

(4) Another mailing date shown by other evidence if there is no certificate of service or postmark.

Deputy Administrator means the officer next in rank below the Administrator.

FAA Administrator means the Administrator of the Federal Aviation Administration.

Individual means an individual whom TSA determines poses a security threat.

(c) Security threat. An individual poses a security threat when the individual is suspected of posing, or is known to pose—

(1) A threat to transportation or national security;

(2) A threat of air piracy or terrorism;

(3) A threat to airline or passenger security; or

(4) A threat to civil aviation security.

(d) Representation by counsel. The individual may, if he or she so chooses, be represented by counsel at his or her own expense.

(e) Initial Notification of Threat Assessment—(1) Issuance. If the Assistant Administrator determines that an individual poses a security threat, the Assistant Administrator serves upon the individual an Initial Notification of Threat Assessment and serves the determination upon the FAA Administrator. The Initial Notification includes—

(i) A statement that the Assistant Administrator personally has reviewed the materials upon which the Initial Notification was based; and

(ii) A statement that the Assistant Administrator has determined that the individual poses a security threat.

(2) Request for materials. Not later than 15 calendar days after the date of service of the Initial Notification, the individual may serve a written request for copies of the releasable materials upon which the Initial Notification was based.

(3) TSA response. Not later than 30 calendar days, or such longer period as TSA may determine for good cause, after receiving the individual's request for copies of the releasable materials upon which the Initial Notification was based, TSA serves a response. TSA will not include in its response any classified information or other information described in paragraph (g) of this section.

(4) Reply. The individual may serve upon TSA a written reply to the Initial Notification of Threat Assessment not later than 15 calendar days after the date of service of the Initial Notification, or the date of service of TSA's response to the individual's request under paragraph (e)(2) if such a request was served. The reply may include any information that the individual believes TSA should consider in reviewing the basis for the Initial Notification.

(5) TSA final determination. Not later than 30 calendar days, or such longer period as TSA may determine for good cause, after TSA receives the individual's reply, TSA serves a final determination in accordance with paragraph (f) of this section.

(f) Final Notification of Threat Assessment—(1) In general. The Deputy Administrator reviews the Initial Notification, the materials upon which the Initial Notification was based, the individual's reply, if any, and any other materials or information available to him.

(2) Issuance of Final Notification. If the Deputy Administrator determines that the individual poses a security threat, the Deputy Administrator serves upon the individual a Final Notification of Threat Assessment and serves the determination upon the FAA Administrator. The Final Notification includes a statement that the Deputy Administrator personally has reviewed the Initial Notification, the individual's reply, if any, and any other materials or information available to him, and has determined that the individual poses a security threat.

(3) Withdrawal of Initial Notification. If the Deputy Administrator does not determine that the individual poses a security threat, TSA serves upon the individual a Withdrawal of the Initial Notification and provides a copy of the Withdrawal to the FAA Administrator.

(g) Nondisclosure of certain information. In connection with the procedures under this section, TSA does not disclose to the individual classified information, as defined in Executive Order 12968 section 1.1(d), and TSA reserves the right not to disclose any other information or material not warranting disclosure or protected from disclosure under law.

[68 FR 3768, Jan. 24, 2003]

Subpart C—Security Threat Assessments

Source: 74 FR 47700, Sept. 16, 2009, unless otherwise noted.

§1540.201   Applicability and terms used in this subpart.

(a) This subpart includes the procedures that certain aircraft operators, foreign air carriers, indirect air carriers, and certified cargo screening facilities must use to have security threat assessments performed on certain individuals pursuant to 49 CFR 1544.228, 1546.213, 1548.7, 1548.15, 1548.16 and 1549.111. This subpart applies to the following:

(1) Each aircraft operator operating under a full program or full all-cargo program described in 49 CFR 1544.101(a) or (h).

(2) Each foreign air carrier operating under a program described in 49 CFR 1546.101(a), (b), or (e).

(3) Each indirect air carrier operating under a security program described in 49 CFR part 1548.

(4) Each applicant applying for unescorted access to cargo under one of the programs described in (a)(1) through (a)(3) of this section.

(5) Each proprietor, general partner, officer, director, or owner of an indirect air carrier as described in 49 CFR 1548.16.

(6) Each certified cargo screening facility described in 49 CFR part 1549.

(7) Each individual a certified cargo screening facility authorizes to perform screening or supervise screening.

(8) Each individual the certified cargo screening facility authorizes to have unescorted access to cargo at any time from the time it is screened until the time it is tendered to an indirect air carrier under 49 CFR part 1548, an aircraft operator under part 1544, or a foreign air carrier under part 1546.

(9) The senior manager or representative of its facility in control of the operations of a certified cargo screening facility under 49 CFR part 1549.

(b) For purposes of this subpart—

Applicant means the individuals listed in paragraph (a) of this section.

Operator means an aircraft operator, foreign air carrier, and indirect air carrier listed in paragraphs (a)(1) through (a)(3) of this section, and a certified cargo screening facility described in paragraph (a)(6) of this section.

(c) An applicant poses a security threat under this subpart when TSA determines that he or she is known to pose or is suspected of posing a threat—

(1) To national security;

(2) To transportation security; or

(3) Of terrorism.

[74 FR 47700, Sept. 16, 2009, as amended at 76 FR 51867, Aug. 18, 2011]

§1540.203   Security threat assessment.

(a) Each operator subject to this subpart must ensure that each of the following undergoes a security threat assessment or a comparable security threat assessment described in §1540.205:

(1) Cargo personnel in the United States, as described in §1544.228.

(2) Cargo personnel in the United States, as described in §1546.213.

(3) Individuals with unescorted access to cargo, as described in §1548.15.

(4) Proprietors, general partners, officers, directors, and owners of an indirect air carrier, as described in §1548.16.

(5) Personnel of certified cargo screening facilities, as described in §1549.111.

(b) Each operator must verify the identity and work authorization of each applicant and examine the document(s) presented by the applicant to prove identity and work authorization to determine whether they appear to be genuine and relate to the applicant presenting them.

(c) Each operator must submit to TSA a security threat assessment application for each applicant that is dated and signed by the applicant and that includes the following:

(1) Legal name, including first, middle, and last; any applicable suffix; and any other names used previously.

(2) Current mailing address, including residential address if it differs from the current mailing address; all other residential addresses for the previous five years; and e-mail address if the applicant has an e-mail address.

(3) Date and place of birth.

(4) Social security number (submission is voluntary, although failure to provide it may delay or prevent completion of the threat assessment).

(5) Gender.

(6) Country of citizenship.

(7) If the applicant is a U.S. citizen born abroad or a naturalized U.S. citizen, their U.S. passport number; or the 10-digit document number from the applicant's Certificate of Birth Abroad, Form DS-1350.

(8) If the applicant is not a U.S. citizen, the applicant's Alien Registration Number.

(9) The applicant's daytime telephone number.

(10) The applicant's current employer(s), and the address and telephone number of the employer(s).

(11) A Privacy Notice as required in the security program and the following statement:

The information I have provided on this application is true, complete, and correct to the best of my knowledge and belief and is provided in good faith. I understand that a knowing and willful false statement, or an omission of a material fact, on this application can be punished by fine or imprisonment or both (see section 1001 of Title 18 United States Code), and may be grounds for denial of authorization or in the case of parties regulated under this section, removal of authorization to operate under this chapter, if applicable.

I acknowledge that if I do not successfully complete the security threat assessment, the Transportation Security Administration may notify my employer. If TSA or other law enforcement agency becomes aware that I may pose an imminent threat to an operator or facility, TSA may provide limited information necessary to reduce the risk of injury or damage to the operator or facility.

(d) Each operator must retain the following for 180 days following the end of the applicant's service to the operator:

(1) The applicant's signed security threat assessment application.

(2) Copies of the applicant's document(s) used to verify identity and work authorization.

(3) Any notifications or documents sent to or received from TSA relating to the applicant's application and security threat assessment.

(4) As applicable, a copy of the applicant's credential evidencing completion of a threat assessment deemed comparable under paragraph (f) of this section.

(e) Records under this section may include electronic documents with electronic signature or other means of personal authentication, where accepted by TSA.

(f) TSA may determine that a security threat assessment conducted by another governmental agency is comparable to a security threat assessment conducted under this subpart. Individuals who have successfully completed a comparable security threat assessment are not required to undergo the security threat assessments described in this subpart. If TSA makes a comparability determination under this section, TSA will so notify the public. In making a comparability determination, TSA will consider—

(i) The minimum standards used for the security threat assessment;

(ii) The frequency of the security threat assessment;

(iii) The date of the most recent threat assessment; and

(iv) Other factors TSA deems appropriate.

(g) To apply for a comparability determination, the agency seeking the determination must contact the Assistant Program Manager, Attn: Federal Agency Comparability Check, Hazmat Threat Assessment Program, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6019.

(h) TSA has determined that each of the following are comparable to the security threat assessment required in this subpart:

(1) A CHRC conducted in accordance with §§1542.209, 1544.229, or 1544.230 that includes a name-based check conducted by TSA.

(2) A security threat assessment conducted under 49 CFR part 1572 for the Transportation Worker Identification Credential or Hazardous Materials Endorsement programs.

(3) A security threat assessment conducted for the Free and Secure Trade (FAST) program administered by U.S. Customs and Border Protection.

(i) If asserting completion of a comparable threat assessment listed in paragraph (h) of this section, an individual must—

(1) Present the credential that corresponds to successful completion of the comparable assessment to the operator so the operator may retain a copy of it; and

(2) Notify the operator when the credential that corresponds to successful completion of the comparable assessment expires or is revoked for any reason.

(j) A security threat assessment conducted under this subpart remains valid for five years from the date that TSA issues a Determination of No Security Threat or a Final Determination of Threat Assessment, except—

(1) If the applicant is no longer authorized to be in the United States, the security threat assessment and the privileges it conveys expire on the date lawful presence expires; or

(2) If the applicant asserts completion of a comparable threat assessment, it expires five years from the date of issuance of the credential that corresponds to the comparable assessment, or the date on which the credential is revoked for any reason.

[74 FR 47700, Sept. 16, 2009, as amended at 76 FR 51867, Aug. 18, 2011]

§1540.205   Procedures for security threat assessment.

(a) Contents of security threat assessment. The security threat assessment TSA conducts under this subpart includes an intelligence-related check and a final disposition.

(b) Intelligence-related check. To conduct an intelligence-related check, TSA completes the following procedures:

(1) Reviews the applicant information required in 49 CFR 1540.203.

(2) Searches domestic and international government databases to determine if an applicant meets the requirements of 49 CFR 1540.201(c) or to confirm an applicant's identity.

(3) Adjudicates the results in accordance with 49 CFR 1540.201(c).

(c) Wants, warrants, deportable aliens. If the searches listed in paragraph (b)(2) of this section indicate that an applicant has an outstanding want or warrant, or is a deportable alien under the immigration laws of the United States, TSA sends the applicant's information to the appropriate law enforcement or immigration agency.

(d) Final disposition. Following completion of the procedures described in paragraph (b), the following procedures apply, as appropriate:

(1) TSA serves a Determination of No Security Threat on the applicant and operator if TSA determines that the applicant meets the security threat assessment standards in 49 CFR 1540.201(c).

(2) TSA serves an Initial Determination of Threat Assessment on the applicant, if TSA determines that the applicant does not meet the security threat assessment standards in 49 CFR 1540.201(c). The Initial Determination of Threat Assessment includes—

(i) A statement that TSA has determined that the applicant is suspected of posing or poses a security threat;

(ii) The basis for the determination;

(iii) Information about how the applicant may appeal the determination, as described in 49 CFR 1515.9; and

(iv) A statement that if the applicant chooses not to appeal TSA's determination within 60 days of receipt of the Initial Determination, or does not request an extension of time within 60 days of the Initial Determination of Threat Assessment in order to file an appeal, the Initial Determination becomes a Final Determination of Security Threat Assessment.

(3) TSA serves an Initial Determination of Threat Assessment and Immediate Revocation on the applicant and the applicant's operator or other operator as approved by TSA, where appropriate, if TSA determines that the applicant does not meet the security threat assessment standards in 49 CFR 1540.201(c) and may pose an imminent threat to transportation or national security, or of terrorism. The Initial Determination of Threat Assessment and Immediate Revocation includes—

(i) A statement that TSA has determined that the applicant is suspected of posing or poses an imminent security threat;

(ii) The basis for the determination;

(iii) Information about how the applicant may appeal the determination, as described in 49 CFR 1515.5(h) or 1515.9(h), as applicable; and

(iv) A statement that if the applicant chooses not to appeal TSA's determination within 60 days of receipt of the Initial Determination, or does not request an extension of time within 60 days of the Initial Determination of Threat Assessment in order to file an appeal, the Initial Determination becomes a Final Determination of Security Threat Assessment.

(4) If the applicant does not appeal the Initial Determination of Threat Assessment or Initial Determination of Threat Assessment and Immediate Revocation, or if TSA does not grant the appeal, TSA serves a Final Determination of Threat Assessment on the individual and the applicant.

(5) If the applicant appeals an Initial Determination of Threat Assessment, the procedures in 49 CFR 1515.5 or 1515.9 apply.

§1540.207   [Reserved]

§1540.209   Fees for security threat assessment.

This section describes the payment process for completion of the security threat assessments required under this subpart.

(a) Fees for security threat assessment. (1) TSA routinely establishes and collects fees to conduct the security threat assessment process. These fees apply to all entities requesting a security threat assessment. TSA reviews the amount of the fee periodically, at least once every two years, to determine the current cost of conducting security threat assessments. TSA determines fee amounts and any necessary revisions to the fee amounts based on current costs, using a method of analysis consistent with widely accepted accounting principles and practices, and calculated in accordance with the provisions of 31 U.S.C. 9701 and other applicable Federal law.

(2) TSA will publish fee amounts and any revisions to the fee amounts as a notice in the Federal Register.

(b) [Reserved]

(c) Remittance of fees. (1) The fees required under this subpart must be remitted to TSA in a form and manner acceptable to TSA each time the applicant or an aircraft operator, foreign air carrier, indirect air carrier, or certified cargo screening facility submits the information required under §1540.203 or §1540.207 to TSA.

(2) Fees remitted to TSA under this subpart must be payable to the “Transportation Security Administration” in U.S. currency and drawn on a U.S. bank.

(3) TSA will not issue any fee refunds, unless a fee was paid in error.

[74 FR 47700, Sept. 16, 2009, as amended at 76 FR 51867, Aug. 18, 2011]

Subpart D—Responsibilities of Holders of TSA-Approved Security Programs

Source: 74 FR 47703, Sept. 16, 2009, unless otherwise noted.

§1540.301   Withdrawal of approval of a security program.

(a) Applicability. This section applies to holders of a security program approved or accepted by TSA under 49 CFR chapter XII, subchapter C.

(b) Withdrawal of security program approval. TSA may withdraw the approval of a security program, if TSA determines continued operation is contrary to security and the public interest, as follows:

(1) Notice of proposed withdrawal of approval. TSA will serve a Notice of Proposed Withdrawal of Approval, which notifies the holder of the security program, in writing, of the facts, charges, and applicable law, regulation, or order that form the basis of the determination.

(2) Security program holder's reply. The holder of the security program may respond to the Notice of Proposed Withdrawal of Approval no later than 15 calendar days after receipt of the withdrawal by providing the designated official, in writing, with any material facts, arguments, applicable law, and regulation.

(3) TSA review. The designated official will consider all information available, including any relevant material or information submitted by the holder of the security program, before either issuing a Withdrawal of Approval of the security program or rescinding the Notice of Proposed Withdrawal of Approval. If TSA issues a Withdrawal of Approval, it becomes effective upon receipt by the holder of the security program, or 15 calendar days after service, whichever occurs first.

(4) Petition for reconsideration. The holder of the security program may petition TSA to reconsider its Withdrawal of Approval by serving a petition for consideration no later than 15 calendar days after the holder of the security program receives the Withdrawal of Approval. The holder of the security program must serve the Petition for Reconsideration on the designated official. Submission of a Petition for Reconsideration will not stay the Withdrawal of Approval. The holder of the security program may request the designated official to stay the Withdrawal of Approval pending review of and decision on the Petition.

(5) Assistant Secretary's review. The designated official transmits the Petition together with all pertinent information to the Assistant Secretary for reconsideration. The Assistant Secretary will dispose of the Petition within 15 calendar days of receipt by either directing the designated official to rescind the Withdrawal of Approval or by affirming the Withdrawal of Approval. The decision of the Assistant Secretary constitutes a final agency order subject to judicial review in accordance with 49 U.S.C. 46110.

(6) Emergency withdrawal. If TSA finds that there is an emergency with respect to aviation security requiring immediate action that makes the procedures in this section contrary to the public interest, the designated official may issue an Emergency Withdrawal of Approval of a security program without first issuing a Notice of Proposed Withdrawal of Approval. The Emergency Withdrawal would be effective on the date that the holder of the security program receives the emergency withdrawal. In such a case, the designated official will send the holder of the security program a brief statement of the facts, charges, applicable law, regulation, or order that forms the basis for the Emergency Withdrawal. The holder of the security program may submit a Petition for Reconsideration under the procedures in paragraphs (b)(4) through (b)(5) of this section; however, this petition will not stay the effective date of the Emergency Withdrawal.

(c) Service of documents for withdrawal of approval of security program proceedings. Service may be accomplished by personal delivery, certified mail, or express courier. Documents served on the holder of a security program will be served at its official place of business as designated in its application for approval or its security program. Documents served on TSA must be served to the address noted in the Notice of Withdrawal of Approval or Withdrawal of Approval, whichever is applicable.

(1) Certificate of service. An individual may attach a certificate of service to a document tendered for filing. A certificate of service must consist of a statement, dated and signed by the person filing the document, that the document was personally delivered, served by certified mail on a specific date, or served by express courier on a specific date.

(2) Date of service. The date of service is—

(i) The date of personal delivery;

(ii) If served by certified mail, the mailing date shown on the certificate of service, the date shown on the postmark if there is no certificate of service, or other mailing date shown by other evidence if there is no certificate of service or postmark; or

(iii) If served by express courier, the service date shown on the certificate of service, or by other evidence if there is no certificate of service.

(d) Extension of time. TSA may grant an extension of time to the limits set forth in this section for good cause shown. A security program holder must submit a request for an extension of time in writing, and TSA must receive it at least two days before the due date in order to be considered. TSA may grant itself an extension of time for good cause.

§1540.303   [Reserved]



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