VZCZCXRO1844
RR RUEHBI RUEHCI
DE RUEHC #2215/01 3312157
ZNR UUUUU ZZH
R 272151Z NOV 09
FM SECSTATE WASHDC
TO RUEHNE/AMEMBASSY NEW DELHI 8114
INFO RUEHCG/AMCONSUL CHENNAI 9921
RUEHCI/AMCONSUL KOLKATA 3474
RUEHBI/AMCONSUL MUMBAI 3009
RHEFHLC/DEPT OF HOMELAND SECURITY WASHINGTON DC
RHMCSUU/FAA NATIONAL HQ WASHINGTON DC
RHMFIUU/TSA HQ WASHINGTON DC
RULSDMK/TRANSPORTATION DEPT WASHINGTON DC 0813

UNCLAS SECTION 01 OF 04 STATE 122215 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: EAIR PREL PTER IN
SUBJECT: CIVAIR INDIA: REQUEST TO SEEK CLARIFICATION FROM THE 
MINISTRY OF CIVIL AVIATION ON SECURITY SCREENINGS 
 
¶1. This is an action request.  See paras. 12-14. 
 
¶2. (SBU) Summary:  Due to recent statements made by Indian Bureau of 
Civil Aviation Security (BCAS) officials in correspondence with a 
U.S. air carrier, as well as comments made by a BCAS official in an 
August 2009 meeting, the Transportation Security Administration (TSA) 
of the U.S. Department of Homeland Security would like to verify that 
Indian air carriers are conducting security screening as required by 
TSA for non-stop flights to the United States.  TSA requests that 
Post meet with senior-level officials at the Ministry of Civil 
Aviation (MOCA) to seek clarification about procedures for security 
screening of flights to the United States, and to request approval 
from the Government of India (GOI) for TSA to conduct inspections of 
host country air carrier non-stop flights operating between India and 
the United States.  MOCA should be informed that if TSA is unable to 
confirm the adequacy of security screening for these flights, the USG 
may be compelled to request consultations under the U.S.-India Air 
Transport Agreement of April 14, 2005 (referred to as the 
"Agreement"), and, if those consultations are not successful at 
resolving the issue, to contemplate additional measures to ensure the 
security of passengers traveling between the United States and India. 
 Given the sensitivity of this issue, the Department urges Post to 
ensure that appropriate officials in the Ministry of External Affairs 
(MEA) also are informed.  Post is also requested to obtain an update 
from GOI officials on the status of the Airport Technical Visit 
Memorandum of Understanding (MOU) proposed by TSA.  End Summary. 
 
Background 
---------- 
 
¶3.  (SBU) In September 2007, TSA attempted to conduct inspections of 
host country air carriers that operate non-stop flights from India's 
New Delhi-Indira Gandhi International Airport (DEL) and 
Mumbai-Chhatrapati Shivaji International Airport (BOM) to the United 
States.  However, the GOI refused to permit the inspection team to 
complete the inspections.  Since that time, the GOI has continued to 
deny TSA requests to carry out Indian air carrier inspections at DEL 
and BOM. 
 
¶4.  (SBU) Although TSA could not perform complete airport assessments 
and air carrier inspections in 2007, TSA was able to determine that 
there were serious security inadequacies at DEL and BOM. 
 
¶5.  (SBU) In response to the extraordinary level of threat in India, 
coupled with weak (or undetermined) security measures being carried 
out at India's last point of departure (LPD) airports, on March 17, 
2009, TSA issued a Security Directive (SD) to U.S. air carriers 
operating to and from India and an Emergency Amendment (EA) to host 
country carriers operating flights to the United States.  The SD and 
EA contain additional security requirements that must be implemented 
by air carriers in order for flights to continue operating to the 
United States.  It had been TSA's understanding, until recently, that 
all air carriers operating flights from India to the United States 
were adhering to TSA's SD or EA, as appropriate. 
 
¶6. (SBU) In late 2007, TSA began negotiations with the GOI for a 
non-binding Airport Technical Visit Memorandum of Understanding with 
the Bureau of Civil Aviation Security (BCAS MOU) that, among other 
things, would allow the United States and India to conduct reciprocal 
airport inspections.  The BCAS MOU has not been completed, though it 
appeared during August 4-7, 2009 meetings in New Delhi between the 
TSA Representative to India and MOCA and BCAS officials that the MOU 
would be concluded in the near term. 
 
¶7.  (SBU) At a meeting on August 7 at BCAS Headquarters, a BCAS 
official told the TSA Representative to India that BCAS had directed 
host country air carriers to disregard U.S. regulations for 
operations to the United States.  TSA confirmed, through discussions 
with Indian air carriers, that this instruction was in fact issued. 
However, the air carriers claim that they have been implementing TSA 
security procedures despite the BCAS instruction. 
 
¶8.  (SBU) On October 28, BCAS issued a Show Cause Notice to 
Continental Airlines (CO) challenging the screening of former 
President Kalam, as well as CO's performance of secondary screening 
measures (as required by the TSA SD issued to CO) not approved by 
BCAS.  The Show Cause Notice raises the concern that the GOI may 
impose legal sanctions on U.S. carriers or their employees that 
implement TSA regulations for U.S.-bound flights and/or that the GOI 
may attempt to prevent CO and other U.S. air carriers from conducting 
 
STATE 00122215  002 OF 004 
 
 
secondary screening or any other additional security measure for 
direct flights to the United States. 
 
¶9.  (SBU) The Show Cause Notice, coupled with the August 7 BCAS 
official's statement (and confirmed by at least one host country air 
carrier, in writing), compels TSA to seek clarification about 
security screening procedures for flights to the United States, and 
to again request approval from the GOI to conduct inspections of host 
country air carrier non-stop flights operated between India and the 
United States. 
 
TSA's Possible Courses of Action 
-------------------------------- 
 
¶10.  Under Article 7 (Security) of the Agreement, each Party has 
agreed to observe the security provisions required by the other Party 
for aircraft to entry into, departure from, or operation in the 
territory of the other Party.  Article 7 further states that if one 
Party has reasonable grounds to believe that the other Party is not 
observing these provisions, and if consultations do not resolve the 
issue, then the first Party can withhold, revoke, limit, or impose 
conditions on the authority of the airlines of that other Party. 
Further, if required by an emergency, a Party may take interim action 
prior to the expiration of the period for consultations. 
 
¶11.  (SBU) TSA's security regulations are promulgated to protect the 
traveling public, the movement of commerce, and the security of U.S. 
airspace.  Therefore, if TSA cannot verify that Indian air carriers 
are conducting necessary secondary screening on non-stop flights to 
the United States as required by U.S. regulations, the USG may be 
compelled to request consultations under the U.S.-India Air Transport 
Agreement and, if those consultations are not successful at resolving 
the issue, may have to consider: 1) posting public notices at U.S. 
international airports advising the public of TSA's inability to 
adequately assess security measures for flights from India to the 
United States; 2) suspending those non-stop flights; 3) requiring 
Indian air carriers to make intermediate stops at airports in a third 
country where more robust security procedures may be carried out 
rather than flying on a non-stop basis to the United States; and/or 
4) requiring Indian air carriers to stop at a more secluded U.S. 
airport for full aircraft off-loading and re-screening before the 
flight may proceed to its final destination. 
 
Action Request 
-------------- 
 
¶12.  (U) TSA requests that Post use the talking points at para 15 
with senior-level officials at MOCA and MEA to seek clarification 
about security screening procedures for flights to the United States, 
to request approval from the GOI to conduct inspections of host 
country air carrier non-stop flights operated between India and the 
United States, and to request approval from the GOI to conduct 
airport inspections at Indian airports serving as last points of 
departure to the United States.   The talking points may also be left 
behind as a non-paper. 
 
¶13.  (U) Post should also inform GOI officials of the actions the USG 
may consider taking if TSA cannot verify the adequacy of security 
screening on flights to the United States as required by U.S. 
regulations. 
 
¶14.  (U) TSA additionally requests that Post inquire about the status 
of the BCAS MOU. 
 
¶15.  (SBU) Begin Talking Points: 
 
-- It is critical that U.S. and Indian civil aviation security 
officials maintain a cooperative working relationship as our 
countries work to meet the difficult challenge of ensuring civil 
aviation security. 
 
-- The United States and India share a commitment to the safety and 
security of international air transport, and the prevention of acts 
or threats against the security of aircraft, which jeopardize the 
safety of persons or property and undermine public confidence in the 
safety of civil aviation.  This shared concern is reflected in the 
safety and security provisions of the U.S.-India Air Transport 
Agreement of 2005 (the Agreement). 
 
-- Under Article 7 (Security) of the Agreement, each Party has agreed 
to observe the security provisions required by the other Party for 
aircraft to entry into, departure from, or operation in the territory 
of the other Party.  Article 7 further states that if one Party has 
reasonable grounds to believe that the other Party is not observing 
these provisions, and if consultations do not resolve the issue, then 
 
STATE 00122215  003 OF 004 
 
 
the first Party can withhold, revoke, limit, or impose conditions on 
the authority of the airlines of that other Party. Further, if 
required by an emergency, a Party may take interim action prior to 
the expiration of the period for consultations. 
 
-- The Transportation Security Administration (TSA) directly 
regulates air carriers, and requires each air carrier operating to 
the United States to carry out a TSA-approved security program. 
Additionally, each such air carrier may, via Emergency Amendments 
(EAs) and Security Directives (SDs), be required to implement certain 
security measures in addition to what is contained in its security 
program in order to address specific emergencies, threats, 
vulnerabilities or other security concerns. 
 
-- Mandatory air carrier security programs, and supplemental EAs and 
SDs, are part of TSA's regulatory scheme, and therefore have the 
force and effect of regulations.  It is the responsibility of the air 
carrier to ensure that the measures contained in an SD or EA are 
adequately implemented.  SDs and EAs are issued to air carriers and 
not foreign governments, and TSA ordinarily does not expect that 
foreign governments would implement the measures contained in these 
documents. 
 
-- If an air carrier is not in compliance with TSA requirements, it 
faces various TSA enforcement actions (administrative action, civil 
penalty, etc.).  Where a country refuses to allow one of its air 
carriers to comply with TSA requirements, then the United States may 
invoke the consultations provision under the security article of an 
air transport agreement (Article 7 of the Agreement). Where 
consultations fail to result in a satisfactory resolution, the 
security article provides that the United States may refuse the air 
carrier entry to U.S. airspace or place other limitations on the air 
carrier's ability to continue operate to the United States. 
 
-- During an August 7, 2009, meeting in New Delhi, a senior official 
of the Indian Bureau of Civil Aviation Security (BCAS) told the TSA 
Representative for India that BCAS had directed host country air 
carriers to disregard U.S. regulations for their operations to the 
United States.  Independently, TSA was able to corroborate this 
statement in discussions with at least one host country air carrier, 
in writing.  However, the carriers claimed to be implementing 
security procedures required in TSA regulations despite the BCAS 
instruction. 
 
-- On October 28, BCAS issued a Show Cause Notice to Continental 
Airlines (CO) challenging the April pre-flight screening of former 
President Kalam and the secondary screening CO conducts that is not 
approved by BCAS.  This raises the concern that the Government of 
India (GOI) may seek to impose legal sanctions on U.S. carriers that 
follow TSA regulations and/or attempt to prevent CO, and other U.S. 
carriers, from conducting secondary screening for flights to the 
United States. 
 
-- As part of its mandate to protect the traveling public and the 
safety and security of U.S. airspace, TSA seeks clarification about 
security screening procedures for flights to the United States, and 
renews its requests for approval from the GOI to conduct inspections 
of Indian air carrier non-stop flights operated between India and the 
United States, and to request approval from the GOI to conduct 
airport inspections at Indian Airports serving as last points of 
departure to the United States, specifically at New Delhi-Indira 
Gandhi International Airport and at Mumbai-Chhatrapati Shivaji 
International Airport. 
 
-- Because of the grave security concerns, if TSA cannot verify the 
adequacy of security screening for flights to the United States, the 
USG may be compelled to request consultations under the Agreement 
and, if those consultations are not successful at resolving the 
issue, may consider the following actions: posting public notices at 
U.S. international airports advising the public of TSA's inability to 
adequately assess security measures for flights from India to the 
United States; suspending Indian carrier non-stop flights between 
India and the United States; requiring Indian carriers to make 
intermediate stops at airports where more robust security procedures 
may be carried out, rather than being permitted to continue flying 
non-stop to the United States; and/or requiring Indian carriers to 
stop at a more secluded U.S. airport for full aircraft off-loading 
and re-screening before the flight may proceed to its final 
destination. 
 
-- TSA also seeks clarification on the status of BCAS consideration 
of the Airport Technical Visit Memorandum of Understanding (MOU) 
proposed by TSA.  This MOU would not only allow reciprocal airport 
inspections, but also would more generally raise the level of 
cooperation between U.S. and Indian civil aviation security 
 
STATE 00122215  004 OF 004 
 
 
officials. 
 
-- Given the serious security concerns faced by the United States, 
TSA has only exempted current Heads of State and Heads of Government 
from the screening process for such flights.  TSA screening 
requirements apply universally to all airports serving as the last 
point of departure into the United States.  However, TSA has 
established discrete and respectful screening protocols for 
non-exempt VIPs.  With prior coordination, these individuals will be 
afforded all due courtesies as appropriate to their former or current 
positions. 
 
End Talking Points. 
CLINTON