Cessation of the Aviation Security Infrastructure Fee (ASIF), 56663-56668 [2014-22617]
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Federal Register / Vol. 79, No. 184 / Tuesday, September 23, 2014 / Rules and Regulations
PARTS 3002, 3007, 3009, 3016, 3034,
3035, and 3052—[AMENDED]
1. The authority citation for parts
3002, 3007, 3009, 3016, 3034, 3035, and
3052 is revised to read as follows:
■
Authority: 5 U.S.C. 301–302, 41 U.S.C.
1707, 41 U.S.C. 1702, and 48 CFR part 1 and
subpart 1.3.
BILLING CODE 9110–9B–P
DEPARTMENT OF HOMELAND
SECURITY
Transportation Security Administration
49 CFR Part 1511
[Docket No. TSA–2002–11334; Amendment
No. 1511–3]
RIN 1652–AA01
Cessation of the Aviation Security
Infrastructure Fee (ASIF)
Transportation Security
Administration, DHS.
ACTION: Final rule.
AGENCY:
The Transportation Security
Administration (TSA) is issuing this
final rule to conform its regulations to
the repeal of the authority to impose the
Aviation Security Infrastructure Fee
(ASIF) on air carriers and foreign air
carriers in air transportation.
DATES: This rule is effective at 11:59
p.m. (Eastern Daylight Time) on
September 30, 2014.
FOR FURTHER INFORMATION CONTACT:
Michael Gambone, Office of Revenue,
TSA–14, Transportation Security
Administration, 601 South 12th Street,
Arlington, VA 20598–6014; telephone
(571) 227–2323; email: tsa-fees@
dhs.gov.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Availability of Rulemaking Document
You may obtain an electronic copy
using the Internet by—
(1) Searching the electronic Federal
Docket Management System (FDMS)
Web page at https://www.regulations.gov;
(2) Accessing the Government
Printing Office’s Web page at https://
www.gpo.gov/fdsys/browse/
collection.action?collectionCode=FR to
view the daily published Federal
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Simple or Advanced search for
information, such as a type of document
that crosses multiple agencies or dates;
or
18:51 Sep 22, 2014
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FOR FURTHER INFORMATION CONTACT
section. Make sure to identify the docket
number of this rulemaking.
[FR Doc. 2014–22495 Filed 9–22–14; 8:45 am]
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(3) Visiting TSA’s Security
Regulations Web page at https://
www.tsa.gov and accessing the link for
‘‘Stakeholders’’ at the top of the page,
then the link ‘‘Research Center’’ in the
left column.
In addition, copies are available by
writing or calling the individual in the
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 the FOR
FURTHER INFORMATION CONTACT section.
Persons can obtain further information
regarding SBREFA on the Small
Business Administration’s Web page at
https://www.sba.gov/advo/laws/law_
lib.html.
Good Cause for Immediate Adoption
This action is being taken without
providing the opportunity for notice and
comment. Section 44940(d) of title 49,
U.S.C., exempts the imposition of the
civil aviation security fees authorized in
section 44940 from the procedural
rulemaking notice and comment
procedures set forth in 5 U.S.C. 553 of
the Administrative Procedure Act
(APA).1
Apart from the statutory exemption
discussed above, the APA allows an
agency to forego notice and comment
rulemaking when ‘‘the agency for good
cause finds . . . that notice and public
procedure thereon are impracticable,
unnecessary, or contrary to the public
interest.’’ 5 U.S.C. 553(b). Section 601(a)
of the Bipartisan Budget Act of 2013 2
(Budget Act) repeals TSA’s authority to
collect the fee beginning October 1,
2014. Because collection of the fee will
end on that date regardless of whether
1 This provision of the statute reads: ‘‘(d)
Imposition of Fee.—(1) In general.—
Notwithstanding section 9701 of title 31 and the
procedural requirements of section 553 of title 5,
the Under Secretary shall impose the fee under
subsection (a)(1), and may impose a fee under
subsection (a)(2), through the publication of notice
of such fee in the Federal Register and begin
collection of the fee within 60 days of the date of
enactment of this Act, or as soon as possible
thereafter. * * * (3) Subsequent modification of
fee.—After imposing a fee in accordance with
paragraph (1), the Under Secretary may modify,
from time to time through publication of notice in
the Federal Register, the imposition or collection of
such fee, or both. * * * *’’
2 Public Law 113–67 (Dec. 26, 2013; 127 Stat.
1165).
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56663
this rulemaking is published, TSA finds
that good cause exists under 5 U.S.C.
553(b) for making this a final rule
without notice and comment. As this
rulemaking simply conforms TSA’s
regulations to the statute, notice and an
opportunity for public comment
unnecessary.
I. Purpose of the Regulatory Action
The purpose of this final rule is to
conform TSA’s regulations to changes in
its authorities. In 2001, the Aviation and
Transportation Security Act (ATSA)
authorized TSA to impose a fee to
defray the government’s costs for
providing U.S. civil aviation security
services. One fee was imposed on
passengers (49 U.S.C. 44940(a)(1)). To
the extent the revenue collected from
that fee did not defray all of the relevant
costs, TSA was authorized to impose a
second fee on air carriers and foreign air
carriers in air transportation
(collectively referred to as ‘‘carriers’’).3
Implementing regulations to impose the
ASIF were published in 2002.4 The
Budget Act restructured the fee imposed
on passengers (increasing the estimated
revenue from this fee) 5 and repealed
TSA’s authority to impose the fee on
carriers, effective October 1, 2014.6
Therefore, imposition of the ASIF will
cease based on the statute, regardless of
any changes to TSA’s regulations, but
TSA is also issuing this final rule to
conform 49 CFR part 1511 to its
statutory authority.
II. Background
As authorized by the Aviation and
Transportation Security Act (ATSA),
regulations of the Transportation
Security Administration (TSA) require
U.S. air carriers and foreign air carriers
to pay a fee reflecting the costs for
screening passengers and property in
calendar year (CY) 2000 in order to
defray the Federal Government’s costs
for assuming these responsibilities.
Current 49 CFR part 1511 requires U.S.
air carriers and foreign air carriers
(collectively referred to as ‘‘carriers’’) to
pay an ASIF based on their actual
passenger and property screening costs
for calendar year (CY) 2000.7 While
ATSA provides authority for TSA to
reapportion the fee across the industry
3 See
49 U.S.C. 44940(a)(2) (2002).
67 FR 7926 (Feb. 20, 2002) codified at 49
CFR part 1511.
5 TSA amended its regulations to implement the
restructured fee through an Interim Final Rule. See
79 FR 35462 (June 20, 2014). The Budget Act
increased revenue to be collected directly from
passengers and removed revenue to be collected
directly from air carriers.
6 See Budget Act at § 601(a).
7 See 49 CFR part 1511.
4 See
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based on market share,8 the current
regulations only apply to carriers in
operation in CY 2000. Under the Interim
Final Rule (IFR), published in 2002,9
carriers are continuing to remit the same
amount to TSA based on their CY 2000
passenger and property screening costs.
To the extent carriers that operated in
CY 2000 are no longer operating, their
portion of the ASIF is uncollected.
Similarly, as previously noted, carriers
that have entered the market since CY
2000 are not currently subject to the fee.
III. Summary of the Final Rule
Through this Final Rule, TSA is
conforming its regulations to repeal of
the authority to impose the ASIF. No
new ASIF liability will be incurred after
11:59 p.m. on September 30, 2014. Any
ASIF liability incurred before 11:59 p.m.
on September 30, 2014, must be
transmitted to TSA consistent with
current procedures. To mitigate the
possibility for any confusion regarding
the applicable requirements and
procedures for ASIF liability incurred
before the effective date of this final rule
and remittance procedures, the relevant
provisions of 49 CFR part 1511 are not
being modified (such as sections 1511.5
and 1511.7). TSA is removing the
requirements for an independent audit
and record keeping (sec. 1511.9)
because they are unnecessary once this
final rule takes effect. The Paperwork
Reduction Act implications of this
amendment are discussed below.
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. As
protection provided by the Paperwork
Reduction Act, as amended, an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number. TSA currently has an approved
information collection related to ASIF
records retention through March 31,
2016.10 With this final rule, TSA is
discontinuing the information collection
request by removing the requirement to
retain these records. The annual average
burden associated with this
recordkeeping requirement is estimated
to be $24,031. TSA has submitted to
OMB a discontinuation request for the
currently approved information
collection.
Regulatory Impact Analyses
Executive Orders Nos. 12866
(‘‘Regulatory Planning and Review’’)
and 13563 (‘‘Improving Regulation and
Regulatory Review’’) direct agencies to
assess the costs and benefits of available
regulatory alternatives and, if regulation
is necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility.
This rulemaking is an ‘‘economically
significant regulatory action,’’ under
section 3(f) of Executive Order No.
12866. As further required by this
Executive Order, OMB has reviewed
this final rule and TSA has prepared an
analysis of its estimated costs and
benefits, presented in the following
paragraphs. Table 1 presents the OMB
Circular A–4 Accounting Statement for
this final rule.
As a result of the Budget Act, carriers
will no longer be required to pay the
ASIF effective October 1, 2014.11
Therefore, TSA is issuing this final rule
to conform its regulations to its statutory
authority.12 This is not an implementing
regulation, as the statute clearly
implements the cessation of the ASIF
absent any action by TSA.
TABLE 1—OMB A–4 ACCOUNTING STATEMENT
[Pre-Statute Baseline]
Category
Estimate
Benefits
.
Annualized monetized benefits ...............................................................
Annualized quantified, but unmonetized, benefits.
Qualitative (un-quantified) benefits.
$59,196 ..........................................
7% discount rate.
Costs
Annualized monetized costs.
Annualized quantified, but unmonetized, costs
Qualitative (un-quantified) costs
Transfers
¥$373,200,000 .............................
From whom to whom? ............................................................................
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Reduction in annualized monetized transfers .........................................
Reduction in transfer payments from industry to the Government (as the
Government will no longer be receiving the transfer of ASIF payments
for security services provided).
Under the authority granted to TSA
under 49 U.S.C. 449040 as enacted in
8 See
49 U.S.C. 44940(a)(2)(B)(iii) (2013).
FR 7926 (Feb. 20, 2002).
10 See OMB Control No: 1652–0018.
9 67
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2002, TSA has authority to collect a fee
from carriers. The amount that TSA
11 See
Budget Act § 601(a).
49 CFR part 1511.
13 For an opinion upholding this determination,
see Southwest Airlines Co. v. Transportation
12 See
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7% discount rate.
could collect under that authority was
capped at $420 million.13 The Budget
Security Administration, 650 F.3d 752 (D.C. Cir.
2011). A copy of the opinion is available at https://
www.tsa.gov/stakeholders/aviation-securityinfrastructure-fee-air-carrier-fee.
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Act repeals that authority effective
October 1, 2014. Therefore, the
cessation of the ASIF is the result of a
statutory change that takes effect on
October 1, 2014.
In response to this amendment to its
statutory authority, TSA decided to
issue this final rule to conform current
regulations. Although cessation of fee
imposition would occur absent any
action by TSA, we assess the impacts of
this final rule from the baseline prior to
the change in statutory authority,
pursuant to OMB Circular A–4, which
calls for agencies to use a pre-statute
baseline in cases where a rule, or
portions of a rule, simply restates
statutory requirements that would be
self-implementing, even in the absence
of the regulatory action.14
Analyzing this final rule from the prestatute baseline considers the cessation
of the ASIF to be an economic impact
of this final rule. The following analysis
considers the cessation of the ASIF as a
reduction in transfer payments from
industry to the Government, as the
Government will no longer be receiving
the transfer of ASIF payments for
security services provided.
Impact of Cessation of the ASIF
TSA has identified three impacts of
the cessation of the ASIF: The
Government will no longer collect the
transfer payment from industry;
industry will no longer bear the burden
to remit the ASIF to TSA monthly; and
industry will no longer bear the burden
of retaining records related to the ASIF.
Estimates of these impacts are presented
below:
• Government Will Stop Imposing
Payments on the Industry. To estimate
the impacts of this reduction in ASIF
transfer payments, TSA assessed
historical ASIF collections to determine
the average amount transferred over a
10-year period of analysis. Table 2
presents the historical ASIF
collections.15
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TABLE 2—HISTORICAL ASIF
COLLECTIONS
[Fiscal Year (FY) 2004 to FY 2013]
ASIF
collections
from
carriers 16
(rounded up to
nearest
million)
Fiscal year
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
......................................
$283,000,000
307,000,000
316,000,000
573,000,000
413,000,000
406,000,000
282,000,000
400,000,000
380,000,000
372,000,000
Ten Year Average ................
373,200,000
Using the 10-year average ASIF
collection for FY 2004 through FY 2013
of $373,200,000, TSA calculates the 10year impact of cessation of the ASIF as
a reduction in transfer payments from
industry to Government, placing the
burden of funding security services now
paid for by the ASIF on the
Government. Table 3 presents the 10year reduction in transfer payments.
TABLE 3—FOREGONE ASIF TRANSFER PAYMENT FROM INDUSTRY TO GOVERNMENT
Reduction in ASIF
transfer payments
(undiscounted)
Year
Reduction in ASIF
transfer payments
(3% discounting)
Reduction in ASIF
transfer payments
(7% discounting)
1 ...........................................................................................................................
2 ...........................................................................................................................
3 ...........................................................................................................................
4 ...........................................................................................................................
5 ...........................................................................................................................
6 ...........................................................................................................................
7 ...........................................................................................................................
8 ...........................................................................................................................
9 ...........................................................................................................................
10 .........................................................................................................................
$373,200,000
373,200,000
373,200,000
373,200,000
373,200,000
373,200,000
373,200,000
373,200,000
373,200,000
373,200,000
$362,330,097
351,776,793
341,530,867
331,583,366
321,925,598
312,549,125
303,445,752
294,607,526
286,026,725
277,695,849
$348,785,047
325,967,333
304,642,368
284,712,493
266,086,442
248,678,918
232,410,204
217,205,798
202,996,073
189,715,956
Total ..............................................................................................................
3,732,000,000
3,183,471,699
2,621,200,631
Annualized ...........................................................................................................
373,200,000
373,200,000
373,200,000
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Note: Totals may not add due to rounding. The annualized reductions in ASIF transfer payments are estimated using OMB guidance (see
https://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf, pages 7–8). These annualized estimates are the same
regardless of discounting since TSA uses a constant reduction in ASIF transfer payments based on the 10-year average ASIF collection presented in Table 2.
For the 10-year analysis period, TSA
estimated the total undiscounted
reduction in transfer payment of
approximately $3.7 billion, and the total
discounted reduction in transfer
payment of $3.2 billion using a three
percent discount rate, and $2.6 billion
using a seven percent discount rate. The
cessation of ASIF imposition will
benefit industry as it will no longer be
required to make these transfer
payments to the Government.
• Cost Savings for Stopping Monthly
ASIF Transmission to TSA. To estimate
the cost savings to carriers no longer
required to remit the ASIF to TSA, we
calculated the average local charge for
an electronic transaction from one bank
14 See OMB Circular A–4 (https://www.
whitehouse.gov/sites/default/files/omb/assets/omb/
circulars/a004/a-4.pdf), pages 15–16: ‘‘In some
cases, substantial portions of a rule may simply
restate statutory requirements that would be selfimplementing, even in the absence of the regulatory
action. In these cases, you should use a pre-statute
baseline.’’
15 TSA is not currently collecting the full $420
million allowed under ATSA due to changes in the
industry since the ASIF was established in 2002.
16 TSA data.
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account to another, and applied the
monthly cost to each carrier currently
remitting a fee to TSA. TSA estimates
that the average bank transaction costs
$26.40 per month for an electronic
transfer of fees to TSA.17 Because almost
all carriers would transmit monthly
ASIF payments to TSA electronically,
TSA used the $26.40 per month per
electronic transfer, discussed above, to
calculate transmission costs.
The total number of affected carriers
required to pay the ASIF is estimated to
be 111 (37 air carriers and 74 foreign air
carriers) based on the number of carriers
remitting ASIF payments to TSA in FY
2013. To estimate the cost savings to
industry, TSA multiplied the monthly
bank fee of $26.40 by 12 months to
obtain an average annual bank fee of
$316.80 for each carrier currently
remitting the ASIF. We then multiplied
the annual bank fee ($316.80) by the
number of carriers (111) to obtain the
total annual cost savings, which equals
$35,165 ($316.80 × 111). Table 4
presents the 10-year cost savings for
stopping monthly ASIF transmission to
TSA.
TABLE 4—COST SAVINGS TO CARRIERS FOR STOPPING MONTHLY ASIF TRANSMISSION TO TSA
Cost savings
(undiscounted)
Year
Cost savings
(3% discounting)
Cost savings
(7% discounting)
1 ...................................................................................................................................................
2 ...................................................................................................................................................
3 ...................................................................................................................................................
4 ...................................................................................................................................................
5 ...................................................................................................................................................
6 ...................................................................................................................................................
7 ...................................................................................................................................................
8 ...................................................................................................................................................
9 ...................................................................................................................................................
10 .................................................................................................................................................
$35,165
35,165
35,165
35,165
35,165
35,165
35,165
35,165
35,165
35,165
$34,141
33,146
32,181
31,243
30,333
29,450
28,592
27,759
26,951
26,166
$32,864
30,714
28,705
26,827
25,072
23,432
21,899
20,466
19,127
17,876
Total ......................................................................................................................................
351,648
299,963
246,983
Annualized ...................................................................................................................................
35,165
35,165
35,165
Note: Totals may not add due to rounding.
• Cost Savings for Removal of
Recordkeeping Requirements. When
setting the ASIF in 2002, all carriers
engaged in air transportation, foreign air
transportation, and intrastate air
transportation in 2000 were required to
submit their CY 2000 security screening
costs to TSA.18 Carriers were required to
use the form in Appendix A to 49 CFR
part 1511 to itemize their security costs
by specific cost categories. In this final
rule, TSA is removing current § 1511.9,
requiring recordkeeping of documents
related to CY 2000 costs. TSA estimated
the benefit to covered carriers due to the
elimination of this data and document
retention requirement. TSA estimated
the benefit of no longer maintaining
these documents by summing the
avoided storage retention costs of $71 19
and the avoided annual labor
requirement of $145.50 20 to estimate a
per-carrier savings of $216.50. There are
111 21 carriers currently paying these
fees; the change amounts to an annual
savings of $24,031 ($216.50 × 111).
Table 5 summarizes these cost savings.
TABLE 5—COST SAVINGS TO CARRIERS FROM ELIMINATION OF RECORDKEEPING
Total savings
(undiscounted)
Year
Total savings
(3% discounting)
Total savings
(7% discounting)
$24,031
24,031
24,031
24,031
24,031
24,031
24,031
24,031
24,031
24,031
$23,331
22,652
21,992
21,351
20,730
20,126
19,540
18,971
18,418
17,882
$22,459
20,990
19,617
18,333
17,134
16,013
14,965
13,986
13,071
12,216
Total ......................................................................................................................................
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1 ...................................................................................................................................................
2 ...................................................................................................................................................
3 ...................................................................................................................................................
4 ...................................................................................................................................................
5 ...................................................................................................................................................
6 ...................................................................................................................................................
7 ...................................................................................................................................................
8 ...................................................................................................................................................
9 ...................................................................................................................................................
10 .................................................................................................................................................
240,313
204,992
168,786
17 This estimate is based on the average of the 10
largest U.S. Banks wire transfer fee. https://
www.mybanktracker.com/news/2013/09/27/
comparing-top-10-bank-wire-transfer-fees-fall-2013.
18 49 CFR 1511.5(d).
19 ICR Supporting Statement (OMB control
Number 1652–0018) cost of records storage ($54.60
in 2000) adjusted for 2013 using GDP deflator.
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20 To estimate the annual labor requirement, TSA
uses the Bureau of Labor Statistics (BLS) median
hourly wage for all management occupations (11–
0000) within the Air Transportation sector (NAICS
481000), which is $49.33 (https://www.bls.gov/oes/
2013/may/naics3_481000.htm#00-0000). TSA
applies a load factor of 1.4747 to this wage, to
obtain a loaded hourly wage of $72.75. As the ICR
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Supporting Statement (OMB control Number 1652–
0018) states that the annual burden would require
two labor hours records management, TSA
multiplies $72.75 by two to get a total labor cost
savings of $145.50.
21 Number of carriers remitting the ASIF to TSA
in FY 2013.
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56667
TABLE 5—COST SAVINGS TO CARRIERS FROM ELIMINATION OF RECORDKEEPING—Continued
Total savings
(undiscounted)
Year
Annualized ...................................................................................................................................
24,031
Total savings
(3% discounting)
Total savings
(7% discounting)
24,031
24,031
Note: Totals may not add due to rounding.
For the 10-year analysis period, TSA
estimated the total undiscounted
benefits of the rule for elimination of
recordkeeping to be $240,313, and the
total discounted benefits to be $204,992
using a three percent discount rate, and
$168,786 using a seven percent discount
rate. The benefits arise from cost savings
realized by carriers who no longer have
to retain data and documents on their
costs in CY 2000.
Table 6 show the total savings to the
carriers over a 10-year period.
TABLE 6—TOTAL COST SAVINGS TO CARRIERS
Total savings
(undiscounted)
Year
Total savings
(3% discounting)
Total savings
(7% discounting)
1 ...................................................................................................................................................
2 ...................................................................................................................................................
3 ...................................................................................................................................................
4 ...................................................................................................................................................
5 ...................................................................................................................................................
6 ...................................................................................................................................................
7 ...................................................................................................................................................
8 ...................................................................................................................................................
9 ...................................................................................................................................................
10 .................................................................................................................................................
$59,196
59,196
59,196
59,196
59,196
59,196
59,196
59,196
59,196
59,196
$57,472
55,798
54,173
52,595
51,063
49,576
48,132
46,730
45,369
44,047
$55,323
51,704
48,322
45,160
42,206
39,445
36,864
34,453
32,199
30,092
Total ......................................................................................................................................
591,961
504,955
415,768
Annualized ...................................................................................................................................
59,196
59,196
59,196
Note: Totals may not add due to rounding.
For the 10-year analysis period, TSA
estimated the total cost savings of
$591,961 for all carriers, and a total
discounted savings of $540,955 using a
three percent discount rate, and
$415,768 using a seven percent discount
rate.
Alternatives Considered
For the purposes of this regulatory
impact analysis, TSA analyzed several
alternatives when considering the
impact of this final rule. The Budget Act
repeals 49 U.S.C. 44940(a)(2) and,
therefore, removes any TSA discretion
to impose the ASIF. As of October 1,
2014, TSA no longer has statutory
authority to impose the ASIF, and
regardless of any action by TSA, the
affected carriers will no longer incur
ASIF liability after that date. As such,
any alternatives considered by TSA
would have to include cessation of the
imposition of the ASIF. Table 7 below
summarizes the regulatory alternatives
considered:
• Alternative 1 (Preferred—Cessation
of ASIF and Recordkeeping
Requirements): Alternative 1, the
preferred alternative is discussed above
and would result in an undiscounted
10-year cost savings to industry of
$591,961.
• Alternative 2 (No Action—No ASIF
Rulemaking): As the BBA is selfimplementing in the absence of any
TSA amendments to its regulations, this
alternative would have the same results
as the preferred alternative, in other
words, the affected carriers will no
longer incur ASIF liability. In the
absence of regulatory action, there could
be some uncertainty with respect to
whether related record retention
requirements remained in place.
• Alternative 3 (Cessation of ASIF
and Maintenance of Recordkeeping
Requirements): Under this alternative,
TSA would cease to collect the ASIF
from the affected carriers, but TSA
would retain the recordkeeping
requirements for carriers to use the form
in Appendix A to 49 CFR part 1511 to
itemize their security costs by specific
cost categories. This would reduce the
cost savings to affected carriers, from an
undiscounted 10-year cost savings of
$561,961 in the preferred alternative to
an undiscounted 10-year cost savings of
$351,648. TSA rejects this alternative
because it would fail to maximize
savings to the affected carriers, without
sufficient justification.
mstockstill on DSK4VPTVN1PROD with RULES
TABLE 7—COMPARISON OF ALTERNATIVES
10-year cost
savings
(undiscounted)
Alternatives
Description
Alternative 1—Preferred Alternative ......
Alternative 2—No Action ........................
Alternative 3—Maintain Recordkeeping
Requirements.
TSA repeals the ASIF and all associated requirements ........................................
TSA does not publish a rulemaking. ASIF no longer collected due to BBA .........
TSA repeals the collection of the ASIF, but requires airlines to comply with current recordkeeping requirements.
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591,961
351,648
56668
Federal Register / Vol. 79, No. 184 / Tuesday, September 23, 2014 / Rules and Regulations
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA)
of 1980 22 requires agencies to consider
the impact of their regulatory proposals
on small entities, to analyze effective
alternatives that minimize small entity
impacts, and to make their analyses
available for public comment. Small
entities include small businesses, notfor-profit organizations, and small
governmental jurisdictions. Individuals
and States are not included in the
definition of a small entity. When no
notice of proposed rulemaking has first
been published, no such assessment is
required for a final rule. Furthermore, 5
U.S.C. 553(b)(B) exempts rules from the
requirements of the RFA when an
agency for good cause finds that notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest. As previously
discussed in the preamble, this rule is
exempt from the procedural rulemaking
requirements of 5 U.S.C. 553.
mstockstill on DSK4VPTVN1PROD with RULES
International Trade Impact Assessment
The Trade Agreement Act of 1979 23
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 as TSA has determined
that there are no associated industry
costs, it does not impose significant
barriers to international trade.
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 rule does not contain such
a mandate. Moreover, the requirements
of Title II of UMRA do not apply when
rulemaking actions are taken without
22 Public Law 96–354 (94 Stat. 1164; Sept. 19,
1980).
23 Public Law 96–39 (93 Stat. 144; July 26, 1979).
VerDate Sep<11>2014
18:51 Sep 22, 2014
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the issuance of a notice of proposed
rulemaking. For reasons discussed
above, no notice of proposed
rulemaking is required for this
regulatory action. The requirements of
Title II of the Act, therefore, do not
apply and TSA has not prepared a
statement under the Act.
International Compatibility
In keeping with U.S. obligations
under the Convention on International
Civil Aviation, it is TSA policy to
comply with International Civil
Aviation Organization (ICAO) Standards
and Recommended Practices to the
maximum extent practicable. TSA has
reviewed the corresponding ICAO
Standards and Recommended Practices
and has identified no differences with
these regulations.
The ICAO guidance document on
aviation fees and charges, ICAO
Document 9082 (Ninth Edition—2012),
ICAO’s Policies on Charges for Airports
and Air Navigation Services,
recommends consultations before fees
are imposed on carriers. In addition,
Article 12 of the Air Transport
Agreement between the United States of
America and the European Community
and its Member States, signed on 25 and
30 April 2007, encourages consultation
between the charging authority and
affected carriers.
As no fees are being imposed as a
result of this rulemaking, no
consultation or additional assessment is
required.
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 on 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. This
action is covered by categorical
exclusion (CATEX) number A3(b) in
DHS Management Directive 023–01
(formerly Management Directive
5100.1), Environmental Planning
Program, which guides TSA compliance
with NEPA.
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Energy Impact
The energy impact of the notice 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 for 49 CFR Part 1511
Accounting, Air carriers, Air
transportation, Auditing, Enforcement,
Federal oversight, Foreign air carriers,
Reporting and recordkeeping
requirements, Security measures.
The Amendment
In consideration of the foregoing, the
Transportation Security Administration
amends part 1511 of Chapter XII of Title
49, Code of Federal Regulations, as
follows:
Subchapter A—Administrative and
Procedural Rules
PART 1511—AVIATION SECURITY
INFRASTRUCTURE FEE
1. The authority citation for part 1511
continues to read as follows:
■
Authority: 49 U.S.C. 114, 40113, 44901,
and 44940.
■
■
2. Remove and reserve § 1511.9.
3. Add § 1511.15 to read as follows:
§ 1511.15 Cessation of the Aviation
Security Infrastructure Fee.
Notwithstanding 49 CFR 1511.5 and
1511.7, or any other provision of this
part, beginning 11:59 p.m. (Eastern
Daylight Time) on September 30, 2014,
an air carrier or foreign air carrier
engaged in air transportation will not
incur any further obligations to make
payments to TSA that otherwise would
be required under this part. Any
unremitted Aviation Security
Infrastructure Fees incurred by an air
carrier or foreign air carrier before 11:59
p.m. (Eastern Daylight Time) on
September 30, 2014, are due by October
31, 2014.
Dated: September 17, 2014.
Melvin J. Carraway,
Deputy Administrator.
[FR Doc. 2014–22617 Filed 9–22–14; 8:45 am]
BILLING CODE 9105–05–P
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[Federal Register Volume 79, Number 184 (Tuesday, September 23, 2014)]
[Rules and Regulations]
[Pages 56663-56668]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22617]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1511
[Docket No. TSA-2002-11334; Amendment No. 1511-3]
RIN 1652-AA01
Cessation of the Aviation Security Infrastructure Fee (ASIF)
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Transportation Security Administration (TSA) is issuing
this final rule to conform its regulations to the repeal of the
authority to impose the Aviation Security Infrastructure Fee (ASIF) on
air carriers and foreign air carriers in air transportation.
DATES: This rule is effective at 11:59 p.m. (Eastern Daylight Time) on
September 30, 2014.
FOR FURTHER INFORMATION CONTACT: Michael Gambone, Office of Revenue,
TSA-14, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6014; telephone (571) 227-2323; email: tsa-fees@dhs.gov.
SUPPLEMENTARY INFORMATION:
Availability of Rulemaking Document
You may obtain an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at https://www.regulations.gov;
(2) Accessing the Government Printing Office's Web page at https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR to view
the daily published Federal Register edition; or accessing the ``Search
the Federal Register by Citation'' in the ``Related Resources'' column
on the left, if you need to do a Simple or Advanced search for
information, such as a type of document that crosses multiple agencies
or dates; or
(3) Visiting TSA's Security Regulations Web page at https://www.tsa.gov and accessing the link for ``Stakeholders'' at the top of
the page, then the link ``Research Center'' in the left column.
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 the FOR FURTHER INFORMATION
CONTACT section. Persons can obtain further information regarding
SBREFA on the Small Business Administration's Web page at https://
www.sba.gov/advo/laws/lawlib.html.
Good Cause for Immediate Adoption
This action is being taken without providing the opportunity for
notice and comment. Section 44940(d) of title 49, U.S.C., exempts the
imposition of the civil aviation security fees authorized in section
44940 from the procedural rulemaking notice and comment procedures set
forth in 5 U.S.C. 553 of the Administrative Procedure Act (APA).\1\
---------------------------------------------------------------------------
\1\ This provision of the statute reads: ``(d) Imposition of
Fee.--(1) In general.--Notwithstanding section 9701 of title 31 and
the procedural requirements of section 553 of title 5, the Under
Secretary shall impose the fee under subsection (a)(1), and may
impose a fee under subsection (a)(2), through the publication of
notice of such fee in the Federal Register and begin collection of
the fee within 60 days of the date of enactment of this Act, or as
soon as possible thereafter. * * * (3) Subsequent modification of
fee.--After imposing a fee in accordance with paragraph (1), the
Under Secretary may modify, from time to time through publication of
notice in the Federal Register, the imposition or collection of such
fee, or both. * * * *''
---------------------------------------------------------------------------
Apart from the statutory exemption discussed above, the APA allows
an agency to forego notice and comment rulemaking when ``the agency for
good cause finds . . . that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b). Section 601(a) of the Bipartisan Budget Act of 2013 \2\
(Budget Act) repeals TSA's authority to collect the fee beginning
October 1, 2014. Because collection of the fee will end on that date
regardless of whether this rulemaking is published, TSA finds that good
cause exists under 5 U.S.C. 553(b) for making this a final rule without
notice and comment. As this rulemaking simply conforms TSA's
regulations to the statute, notice and an opportunity for public
comment unnecessary.
---------------------------------------------------------------------------
\2\ Public Law 113-67 (Dec. 26, 2013; 127 Stat. 1165).
---------------------------------------------------------------------------
I. Purpose of the Regulatory Action
The purpose of this final rule is to conform TSA's regulations to
changes in its authorities. In 2001, the Aviation and Transportation
Security Act (ATSA) authorized TSA to impose a fee to defray the
government's costs for providing U.S. civil aviation security services.
One fee was imposed on passengers (49 U.S.C. 44940(a)(1)). To the
extent the revenue collected from that fee did not defray all of the
relevant costs, TSA was authorized to impose a second fee on air
carriers and foreign air carriers in air transportation (collectively
referred to as ``carriers'').\3\ Implementing regulations to impose the
ASIF were published in 2002.\4\ The Budget Act restructured the fee
imposed on passengers (increasing the estimated revenue from this fee)
\5\ and repealed TSA's authority to impose the fee on carriers,
effective October 1, 2014.\6\ Therefore, imposition of the ASIF will
cease based on the statute, regardless of any changes to TSA's
regulations, but TSA is also issuing this final rule to conform 49 CFR
part 1511 to its statutory authority.
---------------------------------------------------------------------------
\3\ See 49 U.S.C. 44940(a)(2) (2002).
\4\ See 67 FR 7926 (Feb. 20, 2002) codified at 49 CFR part 1511.
\5\ TSA amended its regulations to implement the restructured
fee through an Interim Final Rule. See 79 FR 35462 (June 20, 2014).
The Budget Act increased revenue to be collected directly from
passengers and removed revenue to be collected directly from air
carriers.
\6\ See Budget Act at Sec. 601(a).
---------------------------------------------------------------------------
II. Background
As authorized by the Aviation and Transportation Security Act
(ATSA), regulations of the Transportation Security Administration (TSA)
require U.S. air carriers and foreign air carriers to pay a fee
reflecting the costs for screening passengers and property in calendar
year (CY) 2000 in order to defray the Federal Government's costs for
assuming these responsibilities. Current 49 CFR part 1511 requires U.S.
air carriers and foreign air carriers (collectively referred to as
``carriers'') to pay an ASIF based on their actual passenger and
property screening costs for calendar year (CY) 2000.\7\ While ATSA
provides authority for TSA to reapportion the fee across the industry
[[Page 56664]]
based on market share,\8\ the current regulations only apply to
carriers in operation in CY 2000. Under the Interim Final Rule (IFR),
published in 2002,\9\ carriers are continuing to remit the same amount
to TSA based on their CY 2000 passenger and property screening costs.
To the extent carriers that operated in CY 2000 are no longer
operating, their portion of the ASIF is uncollected. Similarly, as
previously noted, carriers that have entered the market since CY 2000
are not currently subject to the fee.
---------------------------------------------------------------------------
\7\ See 49 CFR part 1511.
\8\ See 49 U.S.C. 44940(a)(2)(B)(iii) (2013).
\9\ 67 FR 7926 (Feb. 20, 2002).
---------------------------------------------------------------------------
III. Summary of the Final Rule
Through this Final Rule, TSA is conforming its regulations to
repeal of the authority to impose the ASIF. No new ASIF liability will
be incurred after 11:59 p.m. on September 30, 2014. Any ASIF liability
incurred before 11:59 p.m. on September 30, 2014, must be transmitted
to TSA consistent with current procedures. To mitigate the possibility
for any confusion regarding the applicable requirements and procedures
for ASIF liability incurred before the effective date of this final
rule and remittance procedures, the relevant provisions of 49 CFR part
1511 are not being modified (such as sections 1511.5 and 1511.7). TSA
is removing the requirements for an independent audit and record
keeping (sec. 1511.9) because they are unnecessary once this final rule
takes effect. The Paperwork Reduction Act implications of this
amendment are discussed below.
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. As protection
provided by the Paperwork Reduction Act, as amended, an agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. TSA currently has an approved information collection
related to ASIF records retention through March 31, 2016.\10\ With this
final rule, TSA is discontinuing the information collection request by
removing the requirement to retain these records. The annual average
burden associated with this recordkeeping requirement is estimated to
be $24,031. TSA has submitted to OMB a discontinuation request for the
currently approved information collection.
---------------------------------------------------------------------------
\10\ See OMB Control No: 1652-0018.
---------------------------------------------------------------------------
Regulatory Impact Analyses
Executive Orders Nos. 12866 (``Regulatory Planning and Review'')
and 13563 (``Improving Regulation and Regulatory Review'') direct
agencies to assess the costs and benefits of available regulatory
alternatives and, if regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, distributive impacts,
and equity). Executive Order 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility.
This rulemaking is an ``economically significant regulatory
action,'' under section 3(f) of Executive Order No. 12866. As further
required by this Executive Order, OMB has reviewed this final rule and
TSA has prepared an analysis of its estimated costs and benefits,
presented in the following paragraphs. Table 1 presents the OMB
Circular A-4 Accounting Statement for this final rule.
As a result of the Budget Act, carriers will no longer be required
to pay the ASIF effective October 1, 2014.\11\ Therefore, TSA is
issuing this final rule to conform its regulations to its statutory
authority.\12\ This is not an implementing regulation, as the statute
clearly implements the cessation of the ASIF absent any action by TSA.
---------------------------------------------------------------------------
\11\ See Budget Act Sec. 601(a).
\12\ See 49 CFR part 1511.
Table 1--OMB A-4 Accounting Statement
[Pre-Statute Baseline]
------------------------------------------------------------------------
------------------------------------------------------------------------
Category Estimate
------------------------------------------------------------------------
Benefits
------------------------------------------------------------------------
Annualized monetized benefits... $59,196........... 7% discount rate.
Annualized quantified, but
unmonetized, benefits.
Qualitative (un-quantified)
benefits.
------------------------------------------------------------------------
Costs
------------------------------------------------------------------------
Annualized monetized costs......
Annualized quantified, but
unmonetized, costs
Qualitative (un-quantified)
costs
------------------------------------------------------------------------
Transfers
------------------------------------------------------------------------
Reduction in annualized -$373,200,000..... 7% discount rate.
monetized transfers.
------------------------------------------------------------------------
From whom to whom?.............. Reduction in transfer payments from
industry to the Government (as the
Government will no longer be
receiving the transfer of ASIF
payments for security services
provided).
------------------------------------------------------------------------
Under the authority granted to TSA under 49 U.S.C. 449040 as
enacted in 2002, TSA has authority to collect a fee from carriers. The
amount that TSA could collect under that authority was capped at $420
million.\13\ The Budget
[[Page 56665]]
Act repeals that authority effective October 1, 2014. Therefore, the
cessation of the ASIF is the result of a statutory change that takes
effect on October 1, 2014.
---------------------------------------------------------------------------
\13\ For an opinion upholding this determination, see Southwest
Airlines Co. v. Transportation Security Administration, 650 F.3d 752
(D.C. Cir. 2011). A copy of the opinion is available at https://www.tsa.gov/stakeholders/aviation-security-infrastructure-fee-air-
carrier-fee.
---------------------------------------------------------------------------
In response to this amendment to its statutory authority, TSA
decided to issue this final rule to conform current regulations.
Although cessation of fee imposition would occur absent any action by
TSA, we assess the impacts of this final rule from the baseline prior
to the change in statutory authority, pursuant to OMB Circular A-4,
which calls for agencies to use a pre-statute baseline in cases where a
rule, or portions of a rule, simply restates statutory requirements
that would be self-implementing, even in the absence of the regulatory
action.\14\
---------------------------------------------------------------------------
\14\ See OMB Circular A-4 (https://www.whitehouse.gov/sites/default/files/omb/assets/omb/circulars/a004/a-4.pdf), pages 15-16:
``In some cases, substantial portions of a rule may simply restate
statutory requirements that would be self-implementing, even in the
absence of the regulatory action. In these cases, you should use a
pre-statute baseline.''
---------------------------------------------------------------------------
Analyzing this final rule from the pre-statute baseline considers
the cessation of the ASIF to be an economic impact of this final rule.
The following analysis considers the cessation of the ASIF as a
reduction in transfer payments from industry to the Government, as the
Government will no longer be receiving the transfer of ASIF payments
for security services provided.
Impact of Cessation of the ASIF
TSA has identified three impacts of the cessation of the ASIF: The
Government will no longer collect the transfer payment from industry;
industry will no longer bear the burden to remit the ASIF to TSA
monthly; and industry will no longer bear the burden of retaining
records related to the ASIF. Estimates of these impacts are presented
below:
Government Will Stop Imposing Payments on the Industry. To
estimate the impacts of this reduction in ASIF transfer payments, TSA
assessed historical ASIF collections to determine the average amount
transferred over a 10-year period of analysis. Table 2 presents the
historical ASIF collections.\15\
---------------------------------------------------------------------------
\15\ TSA is not currently collecting the full $420 million
allowed under ATSA due to changes in the industry since the ASIF was
established in 2002.
\16\ TSA data.
Table 2--Historical ASIF Collections
[Fiscal Year (FY) 2004 to FY 2013]
------------------------------------------------------------------------
ASIF
collections
from carriers
Fiscal year \16\ (rounded
up to nearest
million)
------------------------------------------------------------------------
2004.................................................... $283,000,000
2005.................................................... 307,000,000
2006.................................................... 316,000,000
2007.................................................... 573,000,000
2008.................................................... 413,000,000
2009.................................................... 406,000,000
2010.................................................... 282,000,000
2011.................................................... 400,000,000
2012.................................................... 380,000,000
2013.................................................... 372,000,000
------------------------------------------------------------------------
Ten Year Average........................................ 373,200,000
------------------------------------------------------------------------
Using the 10-year average ASIF collection for FY 2004 through FY
2013 of $373,200,000, TSA calculates the 10-year impact of cessation of
the ASIF as a reduction in transfer payments from industry to
Government, placing the burden of funding security services now paid
for by the ASIF on the Government. Table 3 presents the 10-year
reduction in transfer payments.
Table 3--Foregone ASIF Transfer Payment From Industry to Government
----------------------------------------------------------------------------------------------------------------
Reduction in ASIF Reduction in ASIF Reduction in ASIF
Year transfer payments transfer payments transfer payments
(undiscounted) (3% discounting) (7% discounting)
----------------------------------------------------------------------------------------------------------------
1................................................... $373,200,000 $362,330,097 $348,785,047
2................................................... 373,200,000 351,776,793 325,967,333
3................................................... 373,200,000 341,530,867 304,642,368
4................................................... 373,200,000 331,583,366 284,712,493
5................................................... 373,200,000 321,925,598 266,086,442
6................................................... 373,200,000 312,549,125 248,678,918
7................................................... 373,200,000 303,445,752 232,410,204
8................................................... 373,200,000 294,607,526 217,205,798
9................................................... 373,200,000 286,026,725 202,996,073
10.................................................. 373,200,000 277,695,849 189,715,956
-----------------------------------------------------------
Total........................................... 3,732,000,000 3,183,471,699 2,621,200,631
-----------------------------------------------------------
Annualized.......................................... 373,200,000 373,200,000 373,200,000
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding. The annualized reductions in ASIF transfer payments are estimated
using OMB guidance (see https://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-
4FAQ.pdf, pages 7-8). These annualized estimates are the same regardless of discounting since TSA uses a
constant reduction in ASIF transfer payments based on the 10-year average ASIF collection presented in Table
2.
For the 10-year analysis period, TSA estimated the total
undiscounted reduction in transfer payment of approximately $3.7
billion, and the total discounted reduction in transfer payment of $3.2
billion using a three percent discount rate, and $2.6 billion using a
seven percent discount rate. The cessation of ASIF imposition will
benefit industry as it will no longer be required to make these
transfer payments to the Government.
Cost Savings for Stopping Monthly ASIF Transmission to
TSA. To estimate the cost savings to carriers no longer required to
remit the ASIF to TSA, we calculated the average local charge for an
electronic transaction from one bank
[[Page 56666]]
account to another, and applied the monthly cost to each carrier
currently remitting a fee to TSA. TSA estimates that the average bank
transaction costs $26.40 per month for an electronic transfer of fees
to TSA.\17\ Because almost all carriers would transmit monthly ASIF
payments to TSA electronically, TSA used the $26.40 per month per
electronic transfer, discussed above, to calculate transmission costs.
---------------------------------------------------------------------------
\17\ This estimate is based on the average of the 10 largest
U.S. Banks wire transfer fee. https://www.mybanktracker.com/news/2013/09/27/comparing-top-10-bank-wire-transfer-fees-fall-2013.
---------------------------------------------------------------------------
The total number of affected carriers required to pay the ASIF is
estimated to be 111 (37 air carriers and 74 foreign air carriers) based
on the number of carriers remitting ASIF payments to TSA in FY 2013. To
estimate the cost savings to industry, TSA multiplied the monthly bank
fee of $26.40 by 12 months to obtain an average annual bank fee of
$316.80 for each carrier currently remitting the ASIF. We then
multiplied the annual bank fee ($316.80) by the number of carriers
(111) to obtain the total annual cost savings, which equals $35,165
($316.80 x 111). Table 4 presents the 10-year cost savings for stopping
monthly ASIF transmission to TSA.
Table 4--Cost Savings to Carriers for Stopping Monthly ASIF Transmission to TSA
----------------------------------------------------------------------------------------------------------------
Cost savings Cost savings
Year Cost savings (3% (7%
(undiscounted) discounting) discounting)
----------------------------------------------------------------------------------------------------------------
1............................................................... $35,165 $34,141 $32,864
2............................................................... 35,165 33,146 30,714
3............................................................... 35,165 32,181 28,705
4............................................................... 35,165 31,243 26,827
5............................................................... 35,165 30,333 25,072
6............................................................... 35,165 29,450 23,432
7............................................................... 35,165 28,592 21,899
8............................................................... 35,165 27,759 20,466
9............................................................... 35,165 26,951 19,127
10.............................................................. 35,165 26,166 17,876
-----------------------------------------------
Total....................................................... 351,648 299,963 246,983
-----------------------------------------------
Annualized...................................................... 35,165 35,165 35,165
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding.
Cost Savings for Removal of Recordkeeping Requirements.
When setting the ASIF in 2002, all carriers engaged in air
transportation, foreign air transportation, and intrastate air
transportation in 2000 were required to submit their CY 2000 security
screening costs to TSA.\18\ Carriers were required to use the form in
Appendix A to 49 CFR part 1511 to itemize their security costs by
specific cost categories. In this final rule, TSA is removing current
Sec. 1511.9, requiring recordkeeping of documents related to CY 2000
costs. TSA estimated the benefit to covered carriers due to the
elimination of this data and document retention requirement. TSA
estimated the benefit of no longer maintaining these documents by
summing the avoided storage retention costs of $71 \19\ and the avoided
annual labor requirement of $145.50 \20\ to estimate a per-carrier
savings of $216.50. There are 111 \21\ carriers currently paying these
fees; the change amounts to an annual savings of $24,031 ($216.50 x
111). Table 5 summarizes these cost savings.
---------------------------------------------------------------------------
\18\ 49 CFR 1511.5(d).
\19\ ICR Supporting Statement (OMB control Number 1652-0018)
cost of records storage ($54.60 in 2000) adjusted for 2013 using GDP
deflator.
\20\ To estimate the annual labor requirement, TSA uses the
Bureau of Labor Statistics (BLS) median hourly wage for all
management occupations (11-0000) within the Air Transportation
sector (NAICS 481000), which is $49.33 (https://www.bls.gov/oes/2013/
may/naics3481000.htm#00-0000). TSA applies a load factor of
1.4747 to this wage, to obtain a loaded hourly wage of $72.75. As
the ICR Supporting Statement (OMB control Number 1652-0018) states
that the annual burden would require two labor hours records
management, TSA multiplies $72.75 by two to get a total labor cost
savings of $145.50.
\21\ Number of carriers remitting the ASIF to TSA in FY 2013.
Table 5--Cost Savings to Carriers From Elimination of Recordkeeping
----------------------------------------------------------------------------------------------------------------
Total savings Total savings
Year Total savings (3% (7%
(undiscounted) discounting) discounting)
----------------------------------------------------------------------------------------------------------------
1............................................................... $24,031 $23,331 $22,459
2............................................................... 24,031 22,652 20,990
3............................................................... 24,031 21,992 19,617
4............................................................... 24,031 21,351 18,333
5............................................................... 24,031 20,730 17,134
6............................................................... 24,031 20,126 16,013
7............................................................... 24,031 19,540 14,965
8............................................................... 24,031 18,971 13,986
9............................................................... 24,031 18,418 13,071
10.............................................................. 24,031 17,882 12,216
-----------------------------------------------
Total....................................................... 240,313 204,992 168,786
-----------------------------------------------
[[Page 56667]]
Annualized...................................................... 24,031 24,031 24,031
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding.
For the 10-year analysis period, TSA estimated the total
undiscounted benefits of the rule for elimination of recordkeeping to
be $240,313, and the total discounted benefits to be $204,992 using a
three percent discount rate, and $168,786 using a seven percent
discount rate. The benefits arise from cost savings realized by
carriers who no longer have to retain data and documents on their costs
in CY 2000.
Table 6 show the total savings to the carriers over a 10-year
period.
Table 6--Total Cost Savings to Carriers
----------------------------------------------------------------------------------------------------------------
Total savings Total savings
Year Total savings (3% (7%
(undiscounted) discounting) discounting)
----------------------------------------------------------------------------------------------------------------
1............................................................... $59,196 $57,472 $55,323
2............................................................... 59,196 55,798 51,704
3............................................................... 59,196 54,173 48,322
4............................................................... 59,196 52,595 45,160
5............................................................... 59,196 51,063 42,206
6............................................................... 59,196 49,576 39,445
7............................................................... 59,196 48,132 36,864
8............................................................... 59,196 46,730 34,453
9............................................................... 59,196 45,369 32,199
10.............................................................. 59,196 44,047 30,092
-----------------------------------------------
Total....................................................... 591,961 504,955 415,768
-----------------------------------------------
Annualized...................................................... 59,196 59,196 59,196
----------------------------------------------------------------------------------------------------------------
Note: Totals may not add due to rounding.
For the 10-year analysis period, TSA estimated the total cost
savings of $591,961 for all carriers, and a total discounted savings of
$540,955 using a three percent discount rate, and $415,768 using a
seven percent discount rate.
Alternatives Considered
For the purposes of this regulatory impact analysis, TSA analyzed
several alternatives when considering the impact of this final rule.
The Budget Act repeals 49 U.S.C. 44940(a)(2) and, therefore, removes
any TSA discretion to impose the ASIF. As of October 1, 2014, TSA no
longer has statutory authority to impose the ASIF, and regardless of
any action by TSA, the affected carriers will no longer incur ASIF
liability after that date. As such, any alternatives considered by TSA
would have to include cessation of the imposition of the ASIF. Table 7
below summarizes the regulatory alternatives considered:
Alternative 1 (Preferred--Cessation of ASIF and
Recordkeeping Requirements): Alternative 1, the preferred alternative
is discussed above and would result in an undiscounted 10-year cost
savings to industry of $591,961.
Alternative 2 (No Action--No ASIF Rulemaking): As the BBA
is self-implementing in the absence of any TSA amendments to its
regulations, this alternative would have the same results as the
preferred alternative, in other words, the affected carriers will no
longer incur ASIF liability. In the absence of regulatory action, there
could be some uncertainty with respect to whether related record
retention requirements remained in place.
Alternative 3 (Cessation of ASIF and Maintenance of
Recordkeeping Requirements): Under this alternative, TSA would cease to
collect the ASIF from the affected carriers, but TSA would retain the
recordkeeping requirements for carriers to use the form in Appendix A
to 49 CFR part 1511 to itemize their security costs by specific cost
categories. This would reduce the cost savings to affected carriers,
from an undiscounted 10-year cost savings of $561,961 in the preferred
alternative to an undiscounted 10-year cost savings of $351,648. TSA
rejects this alternative because it would fail to maximize savings to
the affected carriers, without sufficient justification.
Table 7--Comparison of Alternatives
------------------------------------------------------------------------
10-year cost
Alternatives Description savings
(undiscounted)
------------------------------------------------------------------------
Alternative 1--Preferred TSA repeals the ASIF $591,961
Alternative. and all associated
requirements.
Alternative 2--No Action..... TSA does not publish 591,961
a rulemaking. ASIF
no longer collected
due to BBA.
Alternative 3--Maintain TSA repeals the 351,648
Recordkeeping Requirements. collection of the
ASIF, but requires
airlines to comply
with current
recordkeeping
requirements.
------------------------------------------------------------------------
[[Page 56668]]
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980 \22\ requires agencies
to consider the impact of their regulatory proposals on small entities,
to analyze effective alternatives that minimize small entity impacts,
and to make their analyses available for public comment. Small entities
include small businesses, not-for-profit organizations, and small
governmental jurisdictions. Individuals and States are not included in
the definition of a small entity. When no notice of proposed rulemaking
has first been published, no such assessment is required for a final
rule. Furthermore, 5 U.S.C. 553(b)(B) exempts rules from the
requirements of the RFA when an agency for good cause finds that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest. As previously discussed in the
preamble, this rule is exempt from the procedural rulemaking
requirements of 5 U.S.C. 553.
---------------------------------------------------------------------------
\22\ Public Law 96-354 (94 Stat. 1164; Sept. 19, 1980).
---------------------------------------------------------------------------
International Trade Impact Assessment
The Trade Agreement Act of 1979 \23\ 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 as TSA has determined that there are no
associated industry costs, it does not impose significant barriers to
international trade.
---------------------------------------------------------------------------
\23\ Public Law 96-39 (93 Stat. 144; July 26, 1979).
---------------------------------------------------------------------------
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 rule does not contain such a
mandate. Moreover, the requirements of Title II of UMRA do not apply
when rulemaking actions are taken without the issuance of a notice of
proposed rulemaking. For reasons discussed above, no notice of proposed
rulemaking is required for this regulatory action. The requirements of
Title II of the Act, therefore, do not apply and TSA has not prepared a
statement under the Act.
International Compatibility
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is TSA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. TSA has
reviewed the corresponding ICAO Standards and Recommended Practices and
has identified no differences with these regulations.
The ICAO guidance document on aviation fees and charges, ICAO
Document 9082 (Ninth Edition--2012), ICAO's Policies on Charges for
Airports and Air Navigation Services, recommends consultations before
fees are imposed on carriers. In addition, Article 12 of the Air
Transport Agreement between the United States of America and the
European Community and its Member States, signed on 25 and 30 April
2007, encourages consultation between the charging authority and
affected carriers.
As no fees are being imposed as a result of this rulemaking, no
consultation or additional assessment is required.
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 on 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. This action is covered by categorical exclusion
(CATEX) number A3(b) in DHS Management Directive 023-01 (formerly
Management Directive 5100.1), Environmental Planning Program, which
guides TSA compliance with NEPA.
Energy Impact
The energy impact of the notice 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 for 49 CFR Part 1511
Accounting, Air carriers, Air transportation, Auditing,
Enforcement, Federal oversight, Foreign air carriers, Reporting and
recordkeeping requirements, Security measures.
The Amendment
In consideration of the foregoing, the Transportation Security
Administration amends part 1511 of Chapter XII of Title 49, Code of
Federal Regulations, as follows:
Subchapter A--Administrative and Procedural Rules
PART 1511--AVIATION SECURITY INFRASTRUCTURE FEE
0
1. The authority citation for part 1511 continues to read as follows:
Authority: 49 U.S.C. 114, 40113, 44901, and 44940.
0
2. Remove and reserve Sec. 1511.9.
0
3. Add Sec. 1511.15 to read as follows:
Sec. 1511.15 Cessation of the Aviation Security Infrastructure Fee.
Notwithstanding 49 CFR 1511.5 and 1511.7, or any other provision of
this part, beginning 11:59 p.m. (Eastern Daylight Time) on September
30, 2014, an air carrier or foreign air carrier engaged in air
transportation will not incur any further obligations to make payments
to TSA that otherwise would be required under this part. Any unremitted
Aviation Security Infrastructure Fees incurred by an air carrier or
foreign air carrier before 11:59 p.m. (Eastern Daylight Time) on
September 30, 2014, are due by October 31, 2014.
Dated: September 17, 2014.
Melvin J. Carraway,
Deputy Administrator.
[FR Doc. 2014-22617 Filed 9-22-14; 8:45 am]
BILLING CODE 9105-05-P
