Accommodating Federal Agencies at Airports and Related Contractual Concerns (2025)
Chapter: IV. CUSTOMS AND SECURITY SERVICES
clause in a conveyance document and an airport’s other obligations regarding self-sustainability and preserving rights and powers, it appears that the FAA will be unlikely to engage in enforcement actions against an airport that is complying with the NEUP requirements in the applicable conveyance documents. NEUP provisions reserve the right to the United States, which means that unless the particular provision in an airport’s conveyance documents narrows that to certain federal agencies or departments, this provision can be relied upon by any federal agency as long as there is a national emergency—for example, FEMA or the Centers for Disease Control and Prevention (CDC). Of course, an airport sponsor’s obligations and options pursuant to compliance with NEUP provisions in conveyance documents cannot be separated from an airport sponsor’s obligations to accommodate federal agencies pursuant to Grant Assurances No. 27 and No. 28. The FAA may and has approved the use of airport property for certain federal agency use without triggering or involving the NEUP process, and the FAA has also released airport sponsors from NEUP obligations, usually for specific portions of the airport, after consultation with the DoD, as contemplated by 14 C.F.R. Part 155, Section 155.9.
A sample NEUP clause is provided from the conveyance documents for the Austin-Bergstrom Airport:
During any national emergency declared by the President of the United States, or the Congress thereof, including any existing national emergency, the United States shall have the right to make exclusive or nonexclusive use and have exclusive or nonexclusive control and possession, without charge, of the Property and its improvements, as it then exists, or of such portion thereof as it may desire. However, the United States shall be responsible for the entire cost of maintaining such part of the Property as it may use exclusively, or over which it may have exclusive possession or control, during the period of such use, possession or control and shall be obligated to contribute a reasonable share, commensurate with the use made by it, of the cost of maintenance of the Property as it may use nonexclusively or over which it may have nonexclusive control and possession. The United States shall also pay a fair rental for use, control or possession, exclusively or nonexclusively, of any improvements to the property made without United States aid and never owned by the United States.
The FAA may grant a release from this provision, which is often referred to as the “recapture clause.” While the airport sponsor submits such a request to the FAA, FAA must then submit the request to the DoD, and ultimately the concurrence of the Chairman of the DoD Airports Subgroup Office is also required. The FAA will not approve a request for release of the NEUP involving the whole airport, and the DoD generally does not concur with a request for release of the NEUP if the release involves actual runways, taxiways, or aprons. Therefore, most successful requests for release of the NEUP are limited to parcels that are no longer needed for aviation purposes.
IV. CUSTOMS AND SECURITY SERVICES
The following section discusses airport engagements with, and obligations related to, U.S. Customs and Border Protection (CBP) and the Transportation Security Administration (TSA).
Airport operators rely on both CBP and TSA services and therefore inherently have a weak negotiating position regarding accommodations and obligations of these agencies. Specifically, airport operators that want to host regular international air traffic from non-preclearance locations must have a CBP presence for customs processing of passengers, baggage, and cargo. Similarly, U.S. airports depend on the TSA screening of passengers, checked baggage, and other items.22
Airport operators may agree to the terms from both agencies due to concern that customs or TSA screening services may be affected. This can affect obligations related to space, equipment, or services, as discussed in the following subsections, and in the case of TSA, airports may take on additional regulatory responsibilities or face compliance challenges based on relationships with the agency. Understanding obligations, service requirements, and partnership opportunities with these agencies may facilitate better operational outcomes for airport operators.
A. Customs and Border Protection
Airport operators face challenges engaging CBP for customs services at their facilities to meet increasing demands for international travel and trade because of both airport- and CBP-related issues. Airport operators at times do not have knowledge of CBP processes and decision making. Airports often find themselves confused regarding the authorities that apply, what requirements they will have, and what processes are required to begin or modify services.
CBP faces challenges meeting legislative requirements, operating within funding constraints, adapting its requirements to industry changes, and managing resources based on increasing service demands. In assessing requests for service, CBP must determine what functions the agency is being asked to complete, what resources and processes will be needed, how the service will be funded, and how the service will be classified. These decisions affect CBP’s funding and may require Department of Homeland Security (DHS) or Congressional approval.
CBP Classifications of Airports
CBP classifies airports where it operates as either a customs port of entry (POE) or one of two customs station delineations.23 The term international airport is defined in 19 C.F.R. § 122.1(e) as a POE. Customs stations include landing rights facilities, as defined by 19 C.F.R. § 122.1(f), and user fee facilities, as defined by 19 C.F.R. § 122.1(m).
Confusion exists because the terms used to classify airports have shifted over time. Part of the issue centers around the regulatory definition of a POE, differing requirements to be a POE, and the functions that are performed in clearing passengers and cargo through customs at airports. Depending on the customs clearance needs, CBP may perform a full range of customs services to process cargo and passengers, whereas other airports may require a lesser service for cargo or passenger processing. The current classifications merge legacy immigration and trade
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22 49 U.S.C. § 44901.
23 U.S. Customs Service, Department of Treasury, Revision of Customs Criteria for Establishing Ports of Entry and Stations, T.D. 82-37, at 99-100 [hereinafter T.D. 82-37].
terminology about ports, POEs, and processing, with guidance created by the Treasury Department in 1982.24
CBP primarily classifies airports as landing rights and user fee facilities to provide the agency with regulatory and administrative flexibility and to reduce operating costs for the agency. However, the international airport classification is sought after by many airports and frequently claimed where a POE designation by CBP does not exist. CBP has acknowledged inconsistent use of the term in the past and challenges it faces in classifying airports within their operational definitions.
Airport operators seeking a new service or to modify an existing service will need to work locally with their port director and consider the volume of travelers and cargo requiring CBP processing.25 Airport operators will need to document a strong business case to justify an initial or modification request for CBP to allocate resources to support a POE or landing rights facility.
Relevance of CBP’s Classifications to Airport Obligations
The distinctions among classification as a POE, landing rights airport, or user fee facility affect the funding and staffing obligations of both CBP and airports, as well as administrative requirements for changes in service. The following subsections will further identify these distinctions, such as paying for CBP staffing or providing operational space and equipment. Here, three considerations are offered to address CBP’s authority to require airport operators to provide space and equipment for passenger and cargo processing.
First, the research for this project did not find any statutory language stating that airport operators must provide facilities or equipment to CBP or any of its predecessor agencies for designation as an international airport. Alternatively, Congress has authorized appropriations for agencies that support customs processing of passengers and cargo in air commerce.26 No federal appropriation of funds for the use of airport space to operate a customs inspection areas or office was identified in this research.
Further, the research did identify multiple Federal Register notices that include language requiring airports to provide adequate facilities for customs or immigration inspection services at international airports.27 The U.S. Customs Service and Immigration and Nationality Service cite many authorities in these notices, including the Air Commerce Act of 1926 and the Tariff Act of 1930. None of the statutes cited by agencies in these Federal Register notices require airport operators to provide space or equipment to the government for customs or immigration inspections. The research was not able to conclusively determine when the language first appeared in regulation.
Second, CBP officials frequently state that they are required to operate revenue-neutral in response to resource questions. The project team found no legislative language requiring revenue-neutral operations by CBP. But the agency has been subject to multiple congressionally required consolidations and reorganizations to better manage their work and reduce fiscal spending.28
Third, airports must consider the benefit they realize from CBP’s services. Without CBP clearing passengers and cargo, an airport cannot have international air traffic. The U.S. Customs Service acknowledged this fact in a 1992 rulemaking to justify its requests for space, facilities, and equipment from airport operators for landing right services.29 Without CBP’s presence, an airport would miss potential revenue and fail to provide its potential full services to the local community.
Port of Entry
POE Designation
Many POEs, including land, sea, and air, were created by the President’s message of March 3, 1913, reorganizing the U.S. Customs Service in response to an August 1912 act by Congress.30 Subsequently, airports have been added and others have been removed from the POE list. Congress, the President, and the Secretary of Homeland Security may exercise authority to add or remove POEs.31
For example, in 1999, the then-U.S. Customs Service and Secretary of Treasury withdrew Akron Fulton Airport’s designation as an international airport and redesignated it a landing rights airport.32 The U.S. Customs Services used an informal rulemaking process to provide notice and comment regarding this change. No comments in support or opposition for the status change were submitted to the U.S. Customs Service.33 The final rule cited a lack of international travel and a failure by the airport to maintain an adequate facility.34
As of this writing, 19 C.F.R. § 122.13 lists 58 airports as international POEs. Many are small and on or near the U.S. northern and southern borders.
CBP uses the criteria published in T.D. 82-37, Revision of Customs Criteria for Establishing Ports of Entry and Stations, as guidance for assessing POE and landing right requests.35
- Demonstrate communities’ benefit
- Have two major modes of service
- Minimum population of 300,000 within approximately a 70-mile radius
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24 See generally 19 C.F.R. § 101; 8 U.S.C. §§ 1223–1224 and T.D. 82-37, supra.
25 T.D. 82-37, supra note 23, at 99.
26 Pub. L. No. 103-272, § 2, 108 Stat. 1358 (1994); 19 U.S.C. § 1644a.
27 Fed. Reg. Doc. 41-6468 § 116.61, filed Aug. 27, 1941; Fed. Reg. Doc. 53-10846, filed Dec. 30, 1953; 19 C.F.R. § 6.14.
28 See 37 Stat. 434 (1912); President Taft Letter to Congress (Mar. 3, 1913); Reorganization Act of 1949, 5 U.S.C. 904; President Johnson Message to Congress (1965).
29 Fed. Reg. Doc. 92-22698.
30 37 Stat. 434 (1912).
31 See 19 C.F.R. § 101.3.
32 T.D. 99-40, Fed. Reg. Vol. 64, No. 72 (Apr. 15, 1999).
33 Id.
34 Id.
35 T.D. 82-37, supra note 23.
- Minimum number of Customs transactions
- Passenger and cargo inspection areas to include primary and secondary areas
- Warehouse space
- Administrative office space
Identifying, withdrawing, or modifying POE statuses requires CBP to complete bureaucratic and administrative requirements because the changes will establish, expand, or reduce CBP services. The DHS and Congress will need to approve changes, and the Administrative Procedures Act requires notice and comment.36 Rulemaking and legislative steps may deter CBP’s exercise of its authority to identify, withdraw, or modify POE status. Additionally, airports may benefit from the agency’s ability to modify landing right and user fee agreements more easily in terms of adding resources as flight schedules demand.
POE Officer Staffing
The term POE carries with it responsibility for CBP to staff the POE. This includes at a minimum a port director, one or more inspectors, and a secretary.37 These operational costs are likely a deterrence for CBP in approving additional POEs as the agency consistently states it has resource challenges. If an airport would like to achieve POE status, they will likely have to provide a strong business case showing the potential positive effects of international commerce to CBP to justify the change.
POEs receive their operational budgets from the President’s Budget. This affects the amount of resources that CBP can staff at each location and their investment in equipment. Airport operators that have a POE should consider working closely with their port director regarding resource needs to identify alternative ways to support additional staffing, such as the reimbursable services program or donations acceptance program, both discussed later in this section.
POE Office Space
An airport operator with a POE must provide CBP an inspection area, a loading dock, and office space.38 The facilities must meet the Airport Technical Design Standards. ACRP Report 25: Airport Passenger Terminal Planning and Design and the National Safe Skies Alliance’s Program for Applied Research 0002 Companion Design Guide to US Customs and Border Protection Airport Technical Design Standards both provide additional information.39
Section 122.11(c) of Title 19 states airport operators provide space to CBP at no cost. Similar to the prior discussion in this section, a thorough review did not identify any statutory authority supporting the regulation requiring airport operators provide real estate to CBP at no cost.
Landing Rights
Landing Rights Designation
CBP engages with airport operators at the local level to establish landing rights agreements. The local port director has discretion in deciding to grant landing rights and in agreeing how much service CBP can provide. Typically, airports and airlines with existing landing rights agreements discuss long- and short-term planned flight schedules to assist CBP with resource allocation.
Airports seeking landing rights classifications, or the modification of an existing agreement, should review the elements of T.D. 82-37 to develop their business justification for their local port director.
Airport Landing Rights Obligations
Like POEs, CBP will ask landing rights airports to pay for CBP facilities and equipment. Unlike POEs, airlines will have to pay CBP for processing.
Title 19 provides a list of reasons why permission to land at a landing rights airport can be temporarily or permanently withdrawn.40 The following lists CBP denial or withdrawal of landing rights per 19 C.F.R. § 122.14(d):
- Appropriate and/or sufficient federal government personnel are not available;
- Proper inspectional facilities or equipment are not available at, or maintained by, the requested airport;
- The entity requesting the landing rights has a history of failing to abide by appropriate instructions of a Customs officer;
- Advance cargo information has not been received as provided in section 122.48a;
- Other reasonable grounds exist to believe that federal rules and regulations pertaining to safety, including cargo safety and security, and Customs, or other inspectional activities have not been followed; or
- The granting of requested landing rights would not be in the best interest of the government.
Airport operators can take steps to ensure landing rights are approved and not denied or withdrawn. Airport operators are responsible to ensure adequate inspection facilities and equipment are available and maintained for CBP.41 Similarly, airports can take steps to ensure compliance with federal safety and security rules under their control.42 But, other actions involve air carrier behavior, which the airport does not control. Finally, CBP can withdraw landing rights if federal personnel are not available.43
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36 Stating APA procedures are required with notice and comment to change status of Customs Service field organizations, 47 Fed. Reg. 10137 (1982).
37 19 C.F.R. § 101.1 and T.D. 82-37, supra note 23, at 99.
38 19 C.F.R. § 122.11(c).
39 NATIONAL ACADEMIES OF SCIENCES, ENGINEERING & MEDICINE, AIRPORT PASSENGER TERMINAL PLANNING AND DESIGN (2010), https://onlinepubs.trb.org/onlinepubs/acrp/acrp_rpt_025v1.pdf; NATIONAL SAFE SKIES ALLIANCE, COMPANION DESIGN GUIDE TO US CUSTOMS AND BORDER PROTECTION’S AIRPORT TECHNICAL DESIGN STANDARDS (2017).
40 19 C.F.R. § 122.14.
41 Id. at (a)(4)(ii) and (d)(2).
42 Id. at (4)(v).
43 Id. at (4)(i).
Airports can work to mitigate this concern by building a strong relationship with their port director and ensuring they have the necessary information for out-year program planning and justifications, as well as near-term information to make changes based on flight schedule demands.
User Fee Facilities Program
User Fee Facility Designation
Airports with less international traffic than required for a POE or landing rights designation can participate in the User Fee Facilities Program. Established in 1984, this program enables CBP to approve services for a fee at airports for passengers and cargo.44 To date, 63 airports participate in the program.45
Airports can qualify as a user fee airport if their international air traffic volume or value of business is less than is required for a POE or landing rights airport and their governor approves the designation.46 The program provides an alternative option for an airport to fund CBP services where CBP will not approve unreimbursed staffing of a customs station based on the projected processing volume.
CBP considers airport applications on a case-by-case basis. The agency considers its ability to meet the customs processing demand and whether the facilities meet the technical design standards. If approved, CBP’s Commissioner will execute a memorandum of understanding (MOU) with the airport.
Airport User Fee Obligations
User fee airports must pay fees charged by CBP to cover staffing expenses, and, by agreement with CBP, provide inspection space and office space and equipment. The fee covers CBP’s expenses, including salary and other costs incurred for CBP employees to complete their duties.47 The agreement may be withdrawn by either party with 120 days’ written notice or if the amount due to be paid to CBP is not paid on a timely basis.48
Facilities Management Considerations
Airports engaging with CBP to operate as POEs, landing rights, or a user fee facility will need to work with their port director to meet CBP’s facilities requirements. The port director and local field office staff will work with the airport operator to ensure they have the proper documentation and follow applicable procedures. Applications for facility construction or modification will go through the port director to CBP headquarters for approval.
After approval, CBP will assign a project manager (PM) to work with the airport through the design and construction phases. The airport will receive the appropriate standards for the facility. The agency has specific facility guidelines for FIS, cargo inspection, general aviation, international mailing facilities, and foreign trade zone. CBP does negotiate these standards with airport operators to meet airport facility needs.
Airport operators will need to execute a Project Requirements Understanding Acknowledgement (PRUA) to move forward with the project. A FIS PRUA template is included in Appendix A. The PRUA requires airports to acknowledge the project is to be completed at no cost to the federal government and will be constructed as “turn-key.” The PRUA “turn-key” definition includes the following elements listed in Exhibit 5.
Additionally, airport operators will need to sign a MOU with CBP to reimburse for communication and IT equipment. Appendix B provides a template of the agreement.
After construction is completed, the airport will sign a free space lease with GSA. This enables CBP’s occupancy at no cost to the government. The lease will include terms for infrastructure and government-furnished equipment. Additional terms will cover security requirements and liability.
Reimbursable Services Program
The Reimbursable Services Program (RSP) enables partnerships between CBP and the private sector or government entities for CBP to provide additional inspection services upon the request of stakeholders. This is an optional program for airports. The RSP is authorized under sections 481 and 482 of the Homeland Security Act, 2002, as amended by the Cross-Border Trade Enhancement Act, 2016.
These services can include customs, immigration, agricultural processing, and border security and support at any facility where CBP provides or will provide services. Further, RSP may cover costs such as salaries, benefits, overtime expenses, administration, and transportation costs. Agreements may not unduly and permanently impact existing services.
There are no limitations on the number of agreements that can be signed per year. In the air environment, the program can only be used for overtime and agriculture services. However, small airports of entry, with fewer than 100,000 international passengers arriving annually, can use the program to offset CBP for the salaries and expenses of up to five full-time officers.
Exhibit 5. Turn-key elements.
| CBP PRUA Turn-key Elements | |
|---|---|
| Complete construction | Finishes |
| Equipment | Signage |
| Furniture | Cabling |
| IT infrastructure | Tactical communications and physical security systems |
| CCTV | Alarms |
| Emergency power supply | Uninterruptible power source (UPS) |
| Telephone system | Computer equipment |
| Office equipment | Relocation |
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44 See 19 U.S.C. § 58b; 19 C.F.R. § 122.15.
45 19 C.F.R. § 122.15.
46 19 U.S.C. § 58b.
47 19 C.F.R. § 122.15; 86 Fed. Reg. 52823.
48 19 C.F.R. § 122.15.
Donations Acceptance Program
The Donations Acceptance Program (DAP) operates comparable to RSP but focuses on real property, personal property, and non-personal services.49 The program was established in 2015 and was subsequently authorized and modified by Congress in 2016 and 2022 to permit CBP’s acceptance of assistance and their ability to enter into agreements regarding the donations.50
In November 2023, CBP and the Cameron County Regional Mobility Authority announced an agreement using the DAP to improve the land POE infrastructure.51 Southwest Airlines and CBP partnered together in 2018 to support canine training. The airline is donating discarded luggage for the agency to use in canine training exercises.52
CBP is primarily looking for donations that create operational efficiencies or enhance safety and security. The program’s website provides donation proposal criteria.53
B. Transportation Safety Administration
TSA has multiple engagements with commercial airports that can create obligations and liabilities for the airports. Regarding real property, TSA has screening checkpoint and checked baggage screening areas provided by the airport operators, and potentially other on-airport leases for office space.
Further, airports and TSA partner together regarding the use of systems, resources, and equipment. This most often involves TSA’s use of airports’ CCTV systems and the law enforcement reimbursement program. This discussion will address common challenges airports have with these programs. Additionally, airports are now partnering with TSA to deploy screening checkpoint equipment.
Passenger Screening Checkpoints and Checked Baggage Areas
Airport operators provide space to TSA for passenger and checked baggage screening. It is a common understanding among the industry and government that airport operators must provide this space to TSA for free. The GSA states in its LDG that “[p]ublic law requires the airport authority or owner to provide security checkpoint screening areas to TSA free of charge” without citing a statute or regulation.54 TSA and airport operators often reference the Aviation and Transportation Security Act (ATSA) as the source of this requirement without providing a specific citation.55 A thorough search of ATSA, TSA regulations, and other pertinent legislation was conducted as part of this research to identify the language requiring airport operators to provide space for TSA to conduct checkpoint and checked baggage screening. No language was found.
TSA signs Other Transaction Agreements (OTAs) with airport operators to set terms and conditions for their use of space for security screening and to establish a vehicle for TSA to reimburse the airports for electricity costs.
In these documents TSA includes language that attempts to provide authority for the agency to use airport space for screening purposes at no charge. First, it states that TSA is required to screen passengers, property, baggage, and cargo at airports to meet its ATSA requirements and therefore it is “necessary” for TSA to use airport space and facilities. Second, TSA adds a no rent clause to the OTA referencing section 511 of the Department of Homeland Security Appropriations Act of 2005 and stating the “airport agrees to provide use of the space at no cost to TSA as part of its obligation to comply with a security program and in recognition of the benefits that TSA’s security function provides to the airport, passengers and others entering airport property.”56 The appropriations language does reserve to airports the right to charge TSA rent if federal law were to require TSA to pay rent for security screening space.57
Section 511 of the Department of Homeland Security Appropriations Act of 2005 does not state that airports must provide space or facilities to TSA rent free for security screening purposes. At most, the statutory language says TSA can use appropriated funds to issue guidance or regulations that may require airports to provide TSA space for security screening. TSA has not chosen to issue any guidance or pursue rulemaking regarding this issue.
The practice of airports providing space for free to TSA most evidently originates from 2003 negotiations and mutual agreements between the TSA and airports as the agency was stood-up and began screening operations. As TSA states, the airports and the traveling public do receive a benefit from TSA’s services.
The language in the checkpoint screening OTA does cover general contractual terms such as responsibilities, dispute resolution, and limitations of liability. Appendix C provides an example TSA Checkpoint OTA.
TSA has exercised its contractual right to audit airport financial records. Article IX of the standard OTA screening space contractual language requires airports to maintain project records, technology maintenance records, and data associated with the agreement.
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49 See 6 U.S.C. § 301(a).
50 Cross-Border Trade Enhancement Act of 2016 and the National Defense Authorization Act (NDAA) of 2022, Pub. L. No. 114-279, amending title IV of the Homeland Security Act of 2002 (authorizing acceptance); and Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), Pub. L. No. 114-125 (2016) (extending authority to permit donations of IPR technology and related support); and Pub. L. No. 117-81, § 6410 (authorizing CBP to enter into agreements).
51 See U.S. CUSTOMS & BORDER PROTECTION, DONATIONS ACCEPTANCE PROGRAM—INFRASTRUCTURE & PERSONAL PROPERTY DONATIONS (Feb. 8, 2024), https://www.cbp.gov/border-security/ports-entry/resource-opt-strategy/public-private-partnerships/donation-acceptance-program/infrastructure-personal-property-donations [hereinafter DAP website].
52 Id.
53 See id.
54 See GSA LDG, supra note 14, at 20-1.
55 See id. at ch. 20.
56 See Pub. L. No. 108-334 § 511.
57 Id.
TSA does reimburse many airports for their use of electricity within the screening areas. Although some requests for reimbursement or modifications of the reimbursement amount have recently been denied because of TSA budget cuts.
In 2020, TSA ended its practice of reimbursing airport operators for janitorial services to clean screening areas. According to TSA Fiscal Year (FY) 2020 Congressional Budget Justification, 165 airports participated in the voluntary reimbursement program at a projected FY 2020 cost of $21.1 million for the agency. TSA states in its budget justification that many airports chose not to use the program because they did not want to renegotiate their large janitorial contracts that service the entire airport. Further, TSA claimed that airports pass along the costs of janitorial services to airlines and other tenants through rates and chargers. The practice of reimbursing airports for cleaning services began in 2003 upon airports’ requests for funding from TSA. One airport reported that they no longer clean the screening areas after TSA revoked funding.
TSA Office Space
Airport operators report confusion regarding the processes and procedures that TSA uses to negotiate, execute, and manage on-airport office space leases. The confusion is reasonable as many different internal TSA actors and GSA are involved. After speaking with multiple TSA officials, they acknowledged the delineation of authorities can be murky and confusing. TSA Management Directive No. 200.12 Space and Furniture for Field Locations describes the roles and responsibilities for TSA officials and GSA.
Local TSA has limited roles in the real estate transactions and management of leases with their respective airports. Their responsibilities primarily lie in coordinating with TSA Headquarters to ensure they have proper information and engage in planning meetings and activities. Of note, the document says that local TSA should not allow GSA to obligate TSA to spend any funding and that they should avoid discussions with the airport or assuming any other offices responsibilities in the leasing processes.
TSA Headquarters has multiple roles regarding the creation and maintenance of relevant lease documentation and cost estimates, ensuring standards are met, managing construction, and managing information technology among other things. Some of GSA’s responsibilities include ensuring standards are met, conducting leasing activities, and negotiating and signing lease documents. Appendix D includes the complete TSA memorandum with the lists of responsibilities for each party.
One airport interviewed for this project discussed two challenges they encountered in TSA leasing new office space at their airport. Initially, the airport worked with TSA to identify a location and necessary alterations to the space to meet the TSA’s requirements. The airport made the changes and was then contacted by the GSA to negotiate the lease. The two issues then arose that contradicted their prior discussion with TSA. First, GSA would not execute the lease because the space did not meet GSA requirements. The airport and GSA identified an alternative space and executed a lease for TSA’s office space. The airport leased the renovated space to a different tenant. Second, GSA attempted to negotiate rates with the airport. GSA claimed the rates were too high for the airport area. As part of the negotiation, the airport leveraged publicly available data to justify the rate and show that GSA was paying more for TSA’s space at a nearby airport. GSA agreed to a rate less than the initial proposed rate but greater than what GSA stated was their maximum to lease space for TSA.
In the end, the airport believed this worked out well as they rented the modified space to another tenant and received a higher rent from TSA for an unaltered office space. It is still not clear to those at the airport regarding what authority TSA has and what authority is GSA’s. TSA has statutory authority to negotiate leases on their own and no formal agreement between TSA and GSA is available for public review. Therefore, this airport or another in its situation may consider using extra caution before investing money in renovating a space for TSA without a signed agreement in place.
Electronic Baggage Screening Program Funding Opportunities
TSA executes OTA’s with airport operators to fund the design and construction of new Checked Baggage Inspection System (CBIS) areas in airports. The design OTA requires the airport operator to provide specific project plans to TSA that cover the purpose of the project, a description and justification, a projected start date, whether a design firm has been identified, and anticipated TSA and airport costs for the project. TSA funds design work at 90 percent of allocable and allowable project costs at medium and large hub airports, and 95 percent of allocable and allowable project costs for other airports.58
The OTA defines responsibilities for TSA and the airport. TSA must provide historical bag and staffing model information, the CBIS Planning Guidelines and Design Standards (PGDS) and EDS specifications, the type of Explosive Detection System TSA plans to install at the airport, timely review and concurrence of plans, and technical support for the equipment manufacturers. Airport operators will need to manage the project, ensure TSA guidelines are met, receive TSA concurrence at each project checkpoint, create a cost estimate, and obtain all licenses, insurance, and permits among other things. Appendix E provides a portion of a Design OTA including airport and TSA responsibilities.
For CBIS area construction projects, TSA issues Facility Modification OTAs to airport operators. TSA funds 90 percent of allocable and allowable costs for medium and large hub airports and 95 percent for other airports.59
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58 TRANSPORTATION SECURITY ADMINISTRATION, DESIGN OTA APPLICATION 6 (Dec. 7, 2015), https://www.tsa.gov/sites/default/files/tsa_form_2602_design_ota_application_151207-508.pdf.
59 Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. pt. 3002 (2014); TRANSPORTATION SECURITY ADMINISTRATION, ELECTRONIC BAGGAGE SCREENING PROGRAM TSA FUNDING OF CHECKED BAGGAGE INSPECTION SYSTEM PROJECTS COST VERSION 6.0 (2020).
Airport operators will need to submit Design Package information as defined in the PGDS for CBIS. The application requires similar information as the design OTA, such as nature of the project, along with more specific design, schedule, and financing information. Of note, airports that require CBISs in multiple terminals or areas will need to submit multiple applications. A sample Construction OTA included in Appendix F includes the list of 22 project sponsor responsibilities to manage construction.
One airport reported difficulties in identifying allocable and non-allocable expenses for both their design and construction OTAs with TSA. The difficulty arose in splitting allocable and non-allocable items and in assessing how much of some construction material was used specifically for TSA reimbursable work or for non-reimbursable portions of the project.
Capabilities Acceptance Process
Airport operators and other stakeholders may consider donating screening equipment to TSA to improve passenger facilitation and security. Airlines and airports donating equipment to TSA became more prevalent in 2016, when airline operators began donating automated screening lanes to TSA to mitigate long checkpoint wait times. Airport operators quickly followed suit to improve passenger experiences at their airports. Donations continued to help TSA deployment of computed tomography (CT) baggage scanners for passenger carry-ons and other more advanced systems for passenger screening checkpoints.
In 2019, TSA created the Capability Acceptance Program (CAP) to provide an expedited vehicle for airports and other stakeholders to donate equipment and services to TSA. CAP assists TSA, airports, and other industry stakeholders in accelerating the deployment of new systems through its authority to accept and use equipment. 60
Airports voluntarily participate in the CAP process when they want to quickly deploy new TSA technologies at their facilities, or they believe TSA does not have enough equipment to fully accommodate passenger volumes or use available checkpoint spaces. Airports have also reported participation in the CAP process after receiving encouragement from TSA to use the program to assist the agency in meeting security screening needs at their airports.
Donated equipment must be on TSA’s Acceptable Capability List (ACL) for full deployment.61 This TSA requirement has caused challenges for some airport operators as it may conflict with their procurement rules and authorities, such as full and open competition. Airport operators should consider their procurement authorities and processes, and any changes they can make, before engaging TSA.
Exhibit 6. Business case factors.
| CAP Application Evaluation Factors | |
|---|---|
| Approved technology | Validated need based on capacity analysis |
| Adequate staffing and training needs | Operational impacts |
| Effect on other TSA projects | Site readiness |
| Deployment considerations | Sustainability |
| Financial analysis | Benefits and risks |
Alternatively, airports can donate equipment not on the ACL for demonstrations or laboratory testing.62 This process has proven helpful for TSA to gain exposure to new equipment that can enhance aviation security and passenger processing.
Airports or other stakeholders seeking to participate in the CAP process will follow a five-step application process.63 The interested airport or stakeholder will engage their local TSA point of contact regarding the potential donation and TSA will then evaluate the business case and other financial factors related to accepting the equipment. In assessing a CAP proposal TSA will evaluate the following business case factors shown in Exhibit 6.64
Next, TSA will execute a MOU with the airport or other stakeholder donor. The MOU will contain common terms and conditions as well as other requirements specific to the donation and operating environment. Airports may either donate or bail equipment to TSA for the agency to operate for a specified period.65 TSA negotiates bailment periods with donors but may request that ownership transfer to the agency at the conclusion of the bailment period. Airport operators should consider terms related to how TSA will use the equipment or restrictions on TSA’s ability to move the equipment to another airport after donation.
TSA has identified the following required MOU terms.66
- Four years’ maintenance and sustainment services per capability
- Donor-supported acceptance testing
- Donor-supported movement of TSA-supplied capability
- Services provided by TSA-approved contractor
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60 49 U.S.C. § 106 (l) and (m).
61 See TRANSPORTATION SECURITY ADMINISTRATION, CAPABILITY ACCEPTANCE PROCESS ACCEPTABLE CAPABILITY LIST, VERSION: 5.5 (Aug. 2023), https://www.tsa.gov/sites/default/files/cap_acceptable_capability_list.pdf.
62 Id.
63 TRANSPORTATION SECURITY ADMINISTRATION, CAPABILITY ACCEPTANCE MANAGEMENT, HTTPS://WWW.TSA.GOV/SITES/DEFAULT/FILES/CAP_BROCHURE_5-9-22_FINAL.PDF (last visited June 24, 2024) [hereinafter TSA CAP Brochure].
64 TRANSPORTATION SECURITY ADMINISTRATION, CAPABILITY ACCEPTANCE PROCESS, https://www.tsa.gov/for-industry/capability-acceptance-process (last visited June 24, 2024).
65 Id.
66 TSA CAP Brochure, supra note 63.
The donor will then work with TSA on implementation activities. TSA has identified the following implementation activities.67
- Design
- Procurement
- Site preparation
- Delivery
- Installation
- Acceptance testing
Last, installation and acceptance of the equipment will occur. This may involve transfer of ownership to TSA dependent on the donation terms.
An airport interviewed for this project worked with TSA to demonstrate and then deploy a new piece of secondary screening equipment to help mitigate alarms. The airport had multiple incidents where the screening area was shut down or the terminal was evacuated when a secondary inspection could not identify an item after an initial alarm. In order to help reduce the frequency of these incidents the airport leadership worked with the TSA Federal Security Director (FSD) to initiate a demonstration of the new alarm resolution technology. The demonstration was successful as TSA found they could quickly clear alarms and avoid bigger operational disruptions. The airport decided that investing in the technology was in their best interest to mitigate the frequency of these events. The airport and TSA created the bailment to donate the equipment to TSA.
Reimbursable Screening Services Program
The Reimbursable Screening Service Program (RSSP) allows for the contracting of TSA equipment and personnel to perform passenger screening operations at locations outside of the primary passenger terminal screening areas. The single RSSP approved to date is operated in conjunction with a VIP club at a large hub airport. The club provides lounge facilities as well as private transportation plane-side and a TSA-staffed screening for club members and authorized guests. The club regulates access to its facility and TSA conducts screening of departing passengers. Three airports have made applications to operate RSSP authorized pilot screening sites. The organization requesting establishment and operation of an RSSP is required to reimburse TSA for all personnel and non-personnel costs.
Non-Traveler Sterile Area Access Program (eSecure)
The TSA has authorized and regulates sterile area access at airports in limited circumstances for non-travelers. The TSA has authorized several airports to conduct pilot programs using eSecure to facilitate sterile area access for visitors to patronize commercial establishments. More commonly, the non-traveler sterile area access program is used to afford access to non-travelers for special events. Airlines also use this process to issue gate passes for individuals escorting or meeting travelers with special needs, like minors in transit.
A central feature of these limited and conditional grants of unescorted access privileges is the need to submit the non-traveler information to the TSA for a limited background check through the TSA’s eSecure portal. This is the same kind of check performed for ticketed passengers to determine whether they pose a threat to aviation. The grant of access is limited to a 24-hour period. All individuals granted access must receive the same type of physical security screening and inspection extended to passengers before they are permitted to enter the sterile area.
Airport participation in eSecure will create multiple obligations. The airport will need to comply with federal privacy requirements such as notice and consent, records retention, and use and disposal of the data. Additionally, the airport will need to train staff to manage the personally identifiable information collected for eSecure submission and the eSecure results that they receive back from TSA.
Closed-Circuit Television
TSA frequently asks airport operators to use or access the airport closed-circuit television (CCTV) cameras. There is no requirement for airport operators to share their CCTV camera footage with TSA but many do. Often these sharing decisions reflect the relationship between the airport and local TSA. Sharing access to CCTV footage can build goodwill with TSA. Reflecting back on the positioning of the relationship between the airport and TSA discussed in this section’s introduction, this goodwill may assist airports in other engagements with the agency. Other airports deem the additional obligations created by sharing agreements too burdensome or cite local records-sharing restrictions and choose not to share CCTV camera footage.
Airports permit TSA varying levels of access and have differing requirements for CCTV access. Some airports have adopted formal agreements, and some manage CCTV access on an informal basis. Some airports grant 24/7 access while others make ad hoc decisions or have greater restrictions. Restrictions may include only allowing TSA access when an incident occurs affecting screening operations or limiting access for TSA to address passenger complaints. Airports must make decisions regarding how they want to partner with TSA, what information they want to protect, and what measures they can put into place to protect CCTV data while sharing.
Airport CCTV video footage of screening checkpoint areas may be considered sensitive security information (SSI) within TSA’s regulations.68 Airport operators should work with TSA before sharing any CCTV footage of the passenger screening checkpoint areas or CBIS screening areas. Pre-emptively discussing this issue with TSA may make policy development or sharing decisions easier when access requests are received. Further, airport operators should be conscious of how they store and manage security screening checkpoint CCTV footage for SSI and privacy purposes. Many airports have FOIA laws that require disclosure of information that they collect and store. Airports should proactively put policies in place to protect this specific information from public release.
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67 Id.
68 49 C.F.R. § 1520.
Formal agreements between airports and TSA establish responsibilities for each entity and set video access and control boundaries. For example, following are lists of responsibilities one airport establishes in a formal agreement for TSA:
- Approved TSA Officials must submit written requests to view or copy video.
- TSA must handle video in their possession as SSI when appropriate, to include proper marking, storage, dissemination, and destruction of copies.
- TSA agrees to not share the video with other people or entities without express written consent.
- TSA provides blank media for airport to provide copies of shared video.
The agreement establishes the airport responsibilities as:
- Provide access to TSA within reasonable time after request for video footage.
- Provide video at no cost to TSA.
- Provide TSA 24-hour access to view video.
- Airport will not release video of TSA checkpoint for CBIS locations without prior consultation with TSA regarding SSI. Further, airport will provide all FOIA requests regarding TSA areas to Federal Security Director or designee for SSI analysis.
This airport’s agreement with TSA specifies additional engagements between the parties. This includes changes to CCTV locations and camera angles, required camera views, and reporting. Specifying this information provides a common understanding among each party regarding what is available from the CCTV system and establishes how the parties will engage. Other airports may find these terms too restrictive and, for example, may want to maintain their ability to move or adjust their cameras without TSA input. Negotiations like this may be highly dependent on the airport and TSA relationship.
LEO Reimbursement
Airport operators can participate in TSA’s Law Enforcement Reimbursement Program managed by TSA’s Federal Air Marshals Service. In Fiscal Year (FY) 2023, TSA had entered approximately 290 OTAs with airport operators to partially reimburse their law enforcement costs incurred to support TSA passenger and accessible property screening as required by 49 C.F.R. § 1542.215 and other Security Directives.69
Of note, funding for the LEO Reimbursement Program was cut with passage of the FY 2024 appropriation package on March 8, 2024, as TSA proposed cutting the program in its FY 2024 Budget Justification sent to Congress.70
Airport operators that may consider the program if funding is restored should consider specific program requirements outlined in the draft OTA. These requirements include stationing at the TSA passenger screening checkpoints or nearby with defined response times, support of screening checkpoint when law enforcement issues arise, and a minimum level of law enforcement support hours per year.71 Some airports may find these requirements too restrictive or inoperable for their operations. Airport operators should conduct a risk assessment and cost benefit analysis to better understand whether the operational change of reimbursement justifies changing their current law enforcement response requirements as defined in their airport security program.
Exit Lanes
In 2013, it was announced that TSA would stop manning exit lanes and require airports to take over the responsibility. This led to litigation and lobbying efforts. Congress responded by requiring TSA to continue monitoring the exit lanes that it was monitoring at the time in the Bipartisan Budget Act of 2013.72
The exit lane continues to be a point of contention between airport operators and the TSA. TSA implemented a policy position that they would not provide staff for exit lanes if an airport moved an existing screening checkpoint or opened a new one. It has also taken time to approve and deploy unmanned technology solutions. Airport operators have delayed or abandoned airport redevelopment plans out of concern of having the responsibility of manning exit lanes.
TSA conducted an analysis of exit lane technology and provided a report to Congress in June 2023.73 Currently, TSA has empowered local FSDs to make decisions regarding the deployment of exit lane technologies.
Airport operators will need to consider: the impact exit lane coverage will have on their development plans; whether they can possibly staff the lane if required by TSA locally; and whether they want to challenge TSA’s requirement that they man the exit lane.
TSA in General Aviation Airports
FAA Order 5190.6B Change 2 (Airport Compliance Manual), Section 7.22 provides an overview of the challenges of implementing TSA security requirements in a general aviation (GA) airport environment.
TSA has instituted guidelines for GA airports. These guidelines provide a set of federally endorsed security enhancements, as well as a method for determining when and where these enhancements may be appropriate.
The relevant compliance implications of TSA security for GA are in the form of security requirements established by an airport sponsor upon airport users. When a complaint is brought to FAA attention, the FAA will attempt informal resolution.
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69 TRANSPORTATION SECURITY ADMINISTRATION, BUDGET OVERVIEW, FISCAL YEAR 2024 CONGRESSIONAL JUSTIFICATION, https://www.dhs.gov/sites/default/files/2023-03/TRANSPORTATION%20SECURITY%20ADMINISTRATION_Remediated.pdf.
70 Id.
71 TRANSPORTATION SECURITY ADMINISTRATION, LEO REIMBURSEMENT OTA.
72 Pub. L. No. 113-67 § 603.
73 TRANSPORTATION SECURITY ADMINISTRATION, FISCAL YEAR 2023 REPORT TO CONGRESS, EXIT LANE STAFFING (June 30, 2023).
