05-3977. Prohibited Items

AGENCY:

Transportation Security Administration (TSA), DHS.

ACTION:

Interpretive rule.

SUMMARY:

This document amends the Transportation Security Administration's (TSA) interpretive rule that provides guidance to the public on the types of property that TSA considers weapons, explosives, and incendiaries prohibited in airport sterile areas, in the cabin of aircraft, or in passengers' checked baggage. This document adds all lighters to the list of prohibited items.

DATES:

Effective Date: March 1, 2005.

FOR FURTHER INFORMATION CONTACT:

Clint Fisher, TSA-9, Transportation Security Policy, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220; telephone [phone].

SUPPLEMENTARY INFORMATION:

Availability of Documents

Availability of Rulemaking Document

You can get an electronic copy using the Internet by—

(1) Searching the Department of Transportation's (DOT's) electronic Docket Management System (DMS) Web page (http://dms.dot.gov/​search);

(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/​fr/​index.html; or

(3) Visiting TSA's Law and Policy Web page at http://www.tsa.dot.gov/​public/​index.jsp.

In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section, above. Make sure to identify the docket number of this rulemaking.

Statutory and Regulatory Background

TSA is an agency in the Department of Homeland Security (DHS), operating under the direction of the Assistant Secretary for Homeland Security (Transportation Security Administration). TSA is responsible for security in all modes of transportation, including aviation. See 49 U.S.C. 114(d). Under TSA's regulation on acceptance and screening of individuals and accessible property, 49 CFR 1540.111, an individual (other than a law enforcement or other authorized individual)—

* * * may not have a weapon, explosive, or incendiary, on or about the individual's person or accessible property—

(1) When performance has begun of the inspection of the individual's person or accessible property before entering a sterile area, or before boarding an aircraft for which screening is conducted under § 1544.201 or § 1546.201 of this chapter;

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

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

On February 14, 2003, TSA published an interpretive rule that provided guidance to the public on the types of property TSA considers to be weapons, explosives, and incendiaries prohibited on an individual's person or accessible property, items permitted on an individual's person or accessible property, and items prohibited in checked baggage (68 FR 7444). On March 3, 2003, TSA subsequently published technical corrections to the interpretive rule at 68 FR 9902.

On December 17, 2004, the President signed into law the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA) (Pub. L. 108-458). Section 4025 of IRTPA requires TSA, no later than 60 days after enactment, to add butane lighters to the prohibited items list and to make any other modifications that TSA considers appropriate. TSA has reviewed the prohibited items list and is now making a change to the list. This document amends TSA's interpretive rule to reflect this change, which is discussed below.

Prohibited Items List Change: All Lighters Prohibited

Pursuant to the February 14, 2003 interpretive rule, TSA limited the types and quantities of lighters that persons are permitted to bring on board the cabin of an aircraft to reflect limits in DOT's regulations (see, e.g., 49 CFR 175.10(a)(10)) and related interpretations governing the transport of hazardous materials on aircraft. Specifically, TSA allowed persons to board an aircraft with no more than two lighters per person, as long as the lighters were fueled with either liquefied gas (Bic®- or Colibri®-type) or absorbed liquid (Zippo®-type). Under the DOT hazardous materials regulation all other types of lighters are prohibited in the aircraft cabin. See 49 CFR 175.10(a)(10). Further, all lighters, including those fueled with liquefied gas or absorbed liquid, are prohibited from carriage in checked baggage.

Most liquefied gas lighters, which in the past have been permitted in the aircraft cabin, are butane lighters. Thus, the effect of Section 4025 of IRTPA is to require the prohibition of most liquefied gas lighters from the cabin of an aircraft. In light of this change, TSA has reconsidered whether all lighters should be prohibited from the cabin of an aircraft.

It is very difficult, and often impossible, for TSA security screeners to distinguish between lighters that are fueled with butane and lighters that are fueled by some other flammable gas or liquid. Consequently, TSA is modifying the prohibited items list to include all lighters, consistent with the provision in section 4025 that directs TSA to make other modifications to the prohibited items list that it deems appropriate. As a result, beginning on the effective date of this rule, TSA is prohibiting passengers from carrying any type of lighter on their person or in accessible property once screening has begun, when in airport sterile areas, or onboard an aircraft for which screening is conducted. In addition, lighters remain prohibited from carriage in passengers' checked baggage under DOT's hazardous materials regulation.

Separately, TSA is considering adding all matches to the prohibited items list. Consistent with DOT's regulation governing the transport of hazardous materials, TSA presently limits the type and quantity of matches passengers may bring on board an aircraft. Specifically, passengers now may carry up to four books of strike-on-cover matches on their person or in accessible property. Under the DOT regulation, all matches are prohibited from carriage in checked baggage. Before modifying the interpretive rule with respect to matches carried on one's person or in accessible property, TSA will publish a notice in the Federal Register requesting public comment on such a change. If TSA determines that prohibiting the carriage of matches on one's person or in accessible property is warranted, the agency will publish a notice in the Federal Register effecting a further modification to its interpretive rule.

Effective Date and Enforcement Discretion

This interpretive rule is effective on March 1, 2005. TSA understands, however, that the addition of lighters to the prohibited items list constitutes a significant change in policy and will exercise its inherent enforcement discretion accordingly during the first 45 days after the effective date.

Amendments to Interpretation

For purposes of reference to the prohibited items list published in the Federal Register on February 14, 2003, and corrected on March 3, 2003, TSA makes the following changes:

1. Section I.E(9) is added to read “All lighters.”

2. Section II.A(9) is amended to read “RESERVED”.

The following is the list of prohibited items and permitted items reprinted in its entirety, with the changes inserted.

Prohibited Items and Permitted Items Interpretation

I. Prohibited Items. For purposes of 49 U.S.C. 40101 et seq. and 49 CFR 1540.111, TSA interprets the terms “weapons, explosives, and incendiaries” to include the items listed below. Accordingly, passengers may not carry these items as accessible property or on their person through passenger screening checkpoints or into airport sterile areas and the cabins of a passenger aircraft.

A. Guns and Firearms

(1) BB guns.

(2) Compressed air guns.

(3) Firearms.

(4) Flare pistols.

(5) Gun lighters.

(6) Parts of guns and firearms.

(7) Pellet guns.

(8) Realistic replicas of firearms.

(9) Spear guns.

(10) Starter pistols.

(11) Stun guns/cattle prods/shocking devices.

B. Sharp Objects

(1) Axes and hatchets.

(2) Bows and arrows.

(3) Drills, including cordless portable power drills.

(4) Ice axes/Ice picks.

(5) Knives of any length, except rounded-blade butter and plastic cutlery.

(6) Meat cleavers.

(7) Razor-type blades, such as box cutters, utility knives, and razor blades not in a cartridge, but excluding safety razors.

(8) Sabers.

(9) Saws, including cordless portable power saws.

(10) Scissors, metal with pointed tips.

(11) Screwdrivers (except those in eyeglass repair kits).

(12) Swords.

(13) Throwing stars (martial arts).

C. Club-Like Items

(1) Baseball bats.

(2) Billy clubs.

(3) Blackjacks.

(4) Brass knuckles.

(5) Cricket bats.

(6) Crowbars.

(7) Golf clubs.

(8) Hammers.

(9) Hockey sticks.

(10) Lacrosse sticks.

(11) Martial arts weapons, including nunchucks, and kubatons.

(12) Night sticks.

(13) Pool cues.

(14) Ski poles.

(15) Tools including, but not limited to, wrenches and pliers.

D. All Explosives, Including

(1) Ammunition.

(2) Blasting caps.

(3) Dynamite.

(4) Fireworks.

(5) Flares in any form.

(6) Gunpowder.

(7) Hand grenades.

(8) Plastic explosives.

(9) Realistic replicas of explosives.

E. Incendiaries

(1) Aerosol, any, except for personal care or toiletries in limited quantities.

(2) Fuels, including cooking fuels and any flammable liquid fuel.

(3) Gasoline.

(4) Gas torches, including micro-torches and torch lighters.

(5) Lighter fluid.

(6) Strike-anywhere matches.

(7) Turpentine and paint thinner.

(8) Realistic replicas of incendiaries.

(9) All lighters.

F. Disabling Chemicals and Other Dangerous Items

(1) Chlorine for pools and spas.

(2) Compressed gas cylinders (including fire extinguishers).

(3) Liquid bleach.

(4) Mace.

(5) Pepper spray.

(6) Spillable batteries, except those in wheelchairs.

(7) Spray Paint.

(8) Tear gas.

II. Permitted Items. For purposes of 49 U.S.C. 40101 et seq. and 49 CFR 1540.111, TSA does not consider the items on the following lists as weapons, explosives, and incendiaries because of medical necessity or because they appear to pose little risk if, as is required, they have passed through screening. Therefore, passengers may carry these items as accessible property or on their person through passenger screening checkpoints and into airport sterile areas and the cabins of passenger aircraft.

A. Medical and Personal Items

(1) Braille note taker, slate and stylus, and augmentation devices.

(2) Cigar cutters.

(3) Corkscrews.

(4) Cuticle cutters.

(5) Diabetes-related supplies/equipment (once inspected to ensure prohibited items are not concealed), including: Insulin and insulin loaded dispensing products; vials or box of individual vials; jet injectors; pens; infusers; and preloaded syringes; and an unlimited number of unused syringes, when accompanied by insulin; lancets; blood glucose meters; blood glucose meter test strips; insulin pumps; and insulin pump supplies. Insulin in any form or dispenser must be properly marked with a professionally printed label identifying the medication or manufacturer's name or pharmaceutical label.

(6) Eyeglass repair tools, including screwdrivers.

(7) Eyelash curlers.

(8) Knives, round-bladed butter or plastic.

(9) Reserved.

(10) Matches (maximum of four books, strike on cover, book type).

(11) Nail clippers.

(12) Nail files.

(13) Nitroglycerine pills or spray for medical use, if properly marked with a professionally printed label identifying the medication or manufacturer's name or pharmaceutical label.

(14) Personal care or toiletries with aerosols, in limited quantities.

(15) Prosthetic device tools and appliances (including drill, allen wrenches, pullsleeves) used to put on or remove prosthetic devices, if carried by the individual with the prosthetic device or his or her companion.

(16) Safety razors (including disposable razors).

(17) Scissors, plastic or metal with blunt tips.

(18) Tweezers.

(19) Umbrellas (once inspected to ensure prohibited items are not concealed).

(20) Walking canes (once inspected to ensure prohibited items are not concealed).

B. Toys, Hobby Items, and Other Items Posing Little Risk

(1) Knitting and crochet needles.

(2) Toy transformer robots.

(3) Toy weapons (if not realistic replicas).

Regulatory Impact Analyses

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Office of Management and Budget directs agencies to assess the effect of regulatory changes on international trade. Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation.)

Executive Order 12866 Assessment

This rule explains to the public, airport personnel, screeners, and airlines how TSA interprets certain terms used in an existing rule, 49 CFR 1540.111. This interpretative rule is not considered an economically significant regulatory action for purposes of Executive Order 12866. However, there has been significant public interest in aviation security issues since the terrorist attacks of September 11, 2001. Therefore, this rule is significant for purposes of the Executive Order and has been reviewed by the Office of Management and Budget (OMB).

This rule modifies the prohibited items list to all lighters consistent with Section 4025 of IRTPA. As a result, passengers will no longer be able to carry any lighters onboard an aircraft for which screening is conducted or into airport sterile areas. TSA notes that this ban may cause inconvenience to some passengers. Passengers and other persons carrying lighters who wish to enter an airport sterile area have several options, some of which include leaving the lighter at home, or returning it to their car. These persons can also choose to abandon the lighter in TSA-provided receptacles, at which point title of the property transfers to the Government.

While TSA acknowledges this added inconvenience, TSA believes that the added security this change provides outweighs the inconvenience.

Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980 requires that agencies perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the determination is that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. For purposes of the RFA, 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.

Based on the analysis discussed in the section above, this interpretative rule does not impose a significant economic impact on a substantial number of small entities. Therefore, a Regulatory Flexibility Analysis is not required.

International Trade Impact Assessment

The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this interpretative rule and has determined that it will impose the same costs on domestic and international entities and thus has a neutral trade impact.

Unfunded Mandates Assessment

The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.”

This rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and TSA has not prepared a statement under the Act.

Executive Order 13132, Federalism

TSA has analyzed this interpretive rule under the principles and criteria of Executive Order 13132, Federalism. We have determined that this action will not have a substantial direct effect on the States, 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 will not have federalism implications.

Environmental Analysis

TSA has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment.

Energy Impact

The energy impact of this action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as amended (42 U.S.C. 6362).

We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA.

David M. Stone,

Assistant Secretary.