560 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 108, 109, 111, 129, and

191

[Docket No. FAA–1999–6673; Notice No. 99–

21]

RIN 2120–AG84

Certification of Screening Companies

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: This document proposes to

require that all companies that perform

aviation security screening be

certificated by the FAA and meet

enhanced requirements. This proposal

is in response to a recommendation by

the White House Commission on

Aviation Safety and Security and to a

Congressional mandate in the Federal

Aviation Reauthorization Act of 1996.

The proposal is intended to improve the

screening of passengers, accessible

property, checked baggage, and cargo

and to provide standards for consistent

high performance and increased

screening company accountability.

DATES: Comments must be received on

or before April 4, 2000.

ADDRESSES: Comments on this

document should be mailed or

delivered, in duplicate, to: U.S.

Department of Transportation Dockets,

Docket No. FAA–1999–6673, 400

Seventh Street SW., Room Plaza 401,

Washington, DC 20590. Comments may

be filed and examined in Room Plaza

401 between 10 a.m. and 5 p.m.

weekdays, except Federal holidays.

Comments also may be sent

electronically to the Dockets

Management System (DMS) at the

following Internet address: http://

dms.dot.gov/ at any time. Commenters

who wish to file comments

electronically should follow the

instructions on the DMS web site.

FOR FURTHER INFORMATION CONTACT: Karl

Shrum, Manager, Civil Aviation

Security Division, Office of Civil

Aviation Security Policy and Planning

(ACP–100), Federal Aviation

Administration, 800 Independence

Avenue, SW., Washington, DC 20591,

telephone (202)267–3946.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of the

proposed action by submitting such

written data, views, or arguments as

they may desire. Comments relating to

the environmental, energy, federalism,

or economic impact that might result

from adopting the proposals in this

document are also invited. Substantive

comments should be accompanied by

cost estimates. Comments must identify

the regulatory docket or notice number

and be submitted in duplicate to the

DOT Rules Docket address specified

above.

All comments received, as well as a

report summarizing each substantive

public contact with FAA personnel

concerning this proposed rulemaking,

will be filed in the docket. The docket

is available for public inspection before

and after the comment closing date. All

comments received on or before the

closing date will be considered by the

Administrator before taking action on

this proposed rulemaking. Comments

filed late will be considered as far as

possible without incurring expense or

delay. The proposals in this document

may be changed in light of the

comments received.

Comments received on this proposal

will be available both before and after

the closing date for comments in the

Rules Docket for examination by

interested persons. However, the

Assistant Administrator for Civil

Aviation Security has determined that

the security programs required by parts

108, 109, and 129 contain sensitive

security information. As such, the

availability of information pertaining to

these security programs is governed by

14 CFR part 191. Carriers, screening

companies, and others who wish to

comment on this document should be

cautious not to include in their

comments any information contained in

any security program.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this document

must include a pre-addressed, stamped

postcard with those comments on which

the following statement is made:

‘‘Comments to Docket No. FAA–1999–

6673.’’ The postcard will be date

stamped and mailed to the commenter.

To give the public an additional

opportunity to comment on the NPRM,

the FAA anticipates planning public

meetings. If the FAA determines that it

is appropriate to hold such meetings, a

separate notice announcing the times,

locations, and procedures for public

meetings will be published in the

Federal Register.

Availability of NPRMs

An electronic copy of this document

may be downloaded using a modem and

suitable communications software from

the FAA regulations section of the

Fedworld electronic bulletin board

service (telephone: (703) 321–3339) or

the Government Printing Office (GPO)’s

electronic bulletin board service

(telephone: (202) 512–1661).

Internet users may reach the FAA’s

web page at http://www.faa.gov/avr/

arm/nprm/nprm.htm, or the GPO’s web

page at http://www.access.gpo.gov/nara

for access to recently published

rulemaking documents.

Any person may obtain a copy of this

document by submitting a request to the

Federal Aviation Administration, Office

of Rulemaking, ARM–1, 800

Independence Avenue, SW.,

Washington, DC 20591, or by calling

(202) 267–9680. Communications must

identify the notice number or docket

number of this NPRM.

Persons interested in being placed on

the mailing list for future rulemaking

documents should request from the

above office a copy of Advisory Circular

No. 11–2A, Notice of Proposed

Rulemaking Distribution System, which

describes the application procedure.

Outline of Preamble

I. Introduction

A. Current Requirements.

B. History.

C. Aviation Security Screening.

D. The Advance Notice of Proposed

Rulemaking (ANPRM).

E. Related Rulemakings.

II. The Proposal: Overview

A. Summary.

B. Certification of All Who Perform

Screening.

C. Roles of Carriers and Screening

Companies.

D. Compliance and Enforcement Issues.

E. New Part 111.

F. Screening of Cargo.

G. Screening Standard Security Program

(SSSP).

H. Screener Qualifications.

I. Performance Measurements and Standards.

III. Proposed Part 111: Section-by-Section

Discussion

Subpart A—General

A. 111.1 Applicability.

B. 111.3 Definitions.

C. 111.5 Inspection authority.

D. 111.7 Falsification.

E. 111.9 Prohibition against interference

with screening personnel.

Subpart B—Security Program, Certificate,

and Operations Specifications

F. 111.101 Performance of screening.

G. 111.103; 111.105; and 111.107 Security

programs.

H. 111.109 Screening company certificate.

I. 111.111; 111.113; and 111.115 Operations

specifications

J. 111.117 Oversight by air carriers, foreign

air carriers, or indirect air carriers.

K. 111.119 Business office.

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 561

Subpart C—Operations

L. 111.201 Screening of persons and

property and acceptance of cargo.

M. 111.203 Use of screening equipment.

N. 111.205 Employment standards for

screening personnel.

O. 111.207 Disclosure of sensitive security

information.

P. 111.209 Screening company management.

Q. 111.211 Screening company instructor

qualifications.

R. 111.213 Training and knowledge of

persons with screening-related duties.

S. 111.215 Training tests: requirements.

T. 111.217 Training tests: cheating and other

unauthorized conduct.

U. 111.219 Screener letter of completion of

training.

V. 111.221 Screener and supervisor training

records.

W. 111.223 Automated performance

measurement and standards.

IV. Proposed Revisions to Parts 108, 109,

and 129

A. 108.201(h); 109.203(a); and

129.25(k) Certification requirement.

B. 108.5 and 109.5 Inspection authority.

C. 108.103(b); 109.103(b); and 129.25(c)

Security program form, content, and

availability.

D. 109.105 and 129.25(e) Approvals and

amendments of security programs.

E. 108.201(i), (j), and (k); 109.203(b), (c), and

(d); and 129.25(l), (m), and (n)

Responsibilities of carriers and screening

companies.

F. 108.201(l) and 129.25(o) Public

notification regarding additional security

measures.

G. 108.205; 109.207; and 129.26 Use of Xray systems.

H. 108.207 and 129.28 Use of explosives

detection systems.

I. 108.229, 109.205, and 129.25(p)

Monitoring of screener training tests.

J. Additional proposed requirements to parts

108, 109, and 129.

V. Proposed Revisions to Part 191

A. Protection of sensitive security

information (SSI).

B. 191.1 Applicability and definitions.

C. 191.5 Records and information protected

by others.

D. 191.7 Description of SSI.

VI. Paperwork Reduction Act

VII. Compatibility With ICAO Standards

VIII. Regulatory Analyses

A. Regulatory evaluation summary.

B. Initial regulatory flexibility determination.

C. International trade impact statement.

D. Unfunded mandates.

E. Federalism implications.

I. Introduction

I.A. Current Requirements

The Administrator is required to

prescribe regulations to protect

passengers and property on aircraft

operating in air transportation or

intrastate air transportation against acts

of criminal violence or aircraft piracy.

Such protections include searches of

persons and property that will be

carried aboard an aircraft to ensure that

they have no unlawful dangerous

weapons, explosives, or other

destructive substances (49 U.S.C.

44901–44903). Screening of all

passengers and property that will be

carried in a cabin of an aircraft in air

transportation or intrastate air

transportation must be done before the

aircraft is boarded, using weapondetecting facilities or procedures used

or operated by employees or agents of

the air carriers, intrastate air carriers, or

foreign air carriers (49 U.S.C. 44901).

Part 108 of Title 14, Code of Federal

Regulations, contains rules in §§ 108.9,

108.17, and 108.20 for air carrier

screening operations. These rules,

which are available to the general

public, provide basic standards for the

screeners, equipment, and procedures to

be used. In addition, each air carrier

required to conduct screening has a

nonpublic security program (required

under current §§ 108.5 and 108.7) that

contains detailed requirements for

screening of persons, accessible

property, checked baggage, and cargo.

All air carriers subject to part 108 have

adopted the Air Carrier Standard

Security Program (ACSSP). The ACSSP

provides identical measures for air

carriers. Individual air carriers may

request alternate procedures in specific

situations if the required level of

security can be maintained.

Part 109 of Title 14, Code of Federal

Regulations (14 CFR), contains rules in

§ 109.3 for conducting security

procedures by indirect air carriers. An

indirect air carrier is any person or

entity within the United States, not in

possession of an FAA air carrier

operating certificate, that undertakes to

engage indirectly in the air

transportation of property, and uses, for

all or any part of such transportation,

the services of a passenger air carrier.

This does not include the U.S. Postal

Service (USPS) or its representative

while acting on behalf of the USPS. This

definition does include freight

forwarders and air couriers. Each

indirect air carrier has a nonpublic

security program (§ 109.5) that contains

detailed requirements for screening

cargo. All indirect air carriers adopt the

Indirect Air Carrier Standard Security

Program (IACSSP). The IACSSP

provides identical measures for indirect

air carriers. IACSSP requirements are

essentially the same as the requirements

in the ACSSP for screening cargo.

Part 129 of Title 14, Code of Federal

Regulations, contains rules in §§ 129.25,

129.26, and 129.27 for foreign air carrier

screening. Each foreign air carrier

conducting screening has a nonpublic

security program (§ 129.25) that

contains detailed requirements for

screening persons, accessible property,

checked baggage, and cargo. All foreign

air carriers conducting operations in the

United States are subject to part 129 and

have adopted the Model Security

Program (MSP) for their security

programs in the United States. The MSP

provides identical measures for foreign

air carriers. MSP requirements

applicable within the United States are

essentially the same as the requirements

in the ACSSP.

Throughout this notice, air carriers,

indirect air carriers, and foreign air

carriers are collectively referred to as

‘‘carriers.’’

There are several means by which a

carrier can conduct screening. It can use

its own employees. It can contract with

another company to conduct the

screening in accordance with the

carrier’s security program. It can

contract with another carrier to conduct

screening. In each case, the carrier is

required to provide oversight to ensure

that all FAA requirements are met.

I.B. History

Since 1985, at least 10 major

international terrorist incidents

involving aviation have occurred

worldwide, including the bombing of

Pan Am flight 103 on December 21,

1988, which killed 243 passengers, 16

crewmembers, and 11 people on the

ground. While all of the attacks against

U.S. civil aviation in this period have

taken place abroad, the link between the

February 1993 World Trade Center

bombing and the January 1995 plot to

bomb several U.S. airliners in the Far

East suggests that civil aviation in the

United States may have become a more

attractive target for terrorist attacks.

Ramzi Ahmed Yousef was convicted

(along with different sets of coconspirators) for his roles in both plots

as well as for the bombing of Philippine

Airlines flight 434 in December 1994.

Had Yousef’s plot to bomb U.S. airliners

succeeded, hundreds if not thousands of

passengers would almost certainly have

been killed.

These incidents have demonstrated

the capabilities and intentions of

international terrorists to attack the

United States and its citizens as well as

the ability of such terrorists to operate

in the United States. The threat posed

by foreign terrorists in the United States

remains a serious concern, and the FAA

believes that the threat will continue for

the foreseeable future.

The threat of terrorist acts against

aircraft has led to several actions by the

United States Government to strengthen

562 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

aviation security. These actions include

two Presidential commissions, the

Aviation Security Improvement Act of

1990, the Federal Aviation

Reauthorization Act of 1996, and several

FAA rulemakings to improve security

measures at airports. The action

proposed in this notice therefore is part

of a broad, continuing effort to increase

aviation security.

Following the tragic crash of TWA

flight 800 on July 17, 1996, the

President created the White House

Commission on Aviation Safety and

Security (the White House

Commission). The White House

Commission issued an initial report on

September 9, 1996, with 20 specific

recommendations for improving

security. One recommendation was for

the development of uniform

performance standards for the selection,

training, certification, and

recertification of screening companies

and their employees. The final report,

issued on February 12, 1997, reiterated

this recommendation.

Before the crash of TWA flight 800,

the FAA had become concerned as well

that there was a need to reevaluate the

overall level of civil aviation security.

The FAA asked the Aviation Security

Advisory Committee (ASAC) to review

the threat assessment of foreign

terrorism within the United States,

consider the warning and interdiction

capabilities of intelligence and law

enforcement, examine the

vulnerabilities of the domestic civil

aviation system, and consider the

potential consequences of a successful

attack. The ASAC, which consists of

representatives from the FAA and other

Federal agencies, the aviation industry,

and public interest groups, formed a

subgroup called the Baseline Working

Group (BWG) on July 17, 1996, to

evaluate the domestic aviation security

‘‘baseline’’ in light of the new threat

environment. The BWG released its

Domestic Security Baseline Final Report

on December 12, 1996. The report

presented multiple recommendations

for improving aviation security through

certifications of screeners and screening

companies, rapid deployments of

available technologies, and institutional

and procedural changes in the U.S.

aviation security system.

On October 9, 1996, the President

signed the Federal Aviation

Reauthorization Act of 1996, Public Law

104–264. Section 302 (49 U.S.C. 44935

note) states:

The Administrator of the Federal Aviation

Administration is directed to certify

companies providing security screening and

to improve the training and testing of

security screeners through development of

uniform performance standards for providing

security screening services.

I.C. Aviation Security Screening

Effective aviation security screening is

critical to protecting passengers in air

transportation against acts of criminal

violence and aircraft piracy. It is the

front line of defense against potential

acts of aviation terrorism. It is therefore

imperative that airports, carriers,

screening companies, and the FAA work

together to strengthen continually the

aviation security screening system.

The FAA first required domestic

passenger screening in 1973 in response

to increasing numbers of hijackings. The

focus at that time was to detect

weapons, such as handguns and knives,

through the use of X-ray and metal

detector technologies at security

checkpoints. The introduction of

screening greatly reduced hijackings in

the United States. Since then, the

greater challenge to security has been

the prevention of aircraft bombings, a

challenge that became particularly

urgent in the 1980’s as various terrorist

elements succeeded in bringing down

aircraft and causing mass casualties by

means of on-board bombs. Some of the

bombs used against aircraft have been

crude devices, easily detectable by

screeners utilizing X-ray machines, but

the trend has been toward smaller

improvised explosive devices (IED’s)

and plastic explosives that are more

difficult to detect without explosives

detection systems (EDS). The threat of

IED’s has also expanded the initial

scope of screening from passengers and

carry-on baggage only to include

checked baggage and cargo.

The FAA has conducted extensive

research regarding how the United

States can best counter these evolving

threats. The research has centered

around both technologies and human

factors issues; each is important to

thorough, effective screening and poses

unique challenges.

The traditional X-ray and metal

detector technologies have been

supplemented since the mid-1990’s

with several new advanced screening

technologies. An advanced screening

technology, as that term is used here, is

any technology that is capable of

automatic threat identification. These

advanced screening technologies

include explosives detection systems,

explosive trace detectors (ETD), and

advanced technology (AT) X-ray-based

machines for automatic bulk explosives

detection, some of which employ

screener assist technologies. At this time

EDS-type technologies certified by the

FAA apply medical computed axial

tomography (CAT) scan technology, but

other types of technologies also may

meet EDS criteria in the future. The EDS

are used to screen checked baggage and

have the ability to automatically detect

threat types and quantities of bulk

explosives at FAA-specified detection

and false alarm rates, up to the initial

system alarm and without human

intervention. The AT systems also focus

on detecting bulk explosives in checked

baggage and have automatic alarm

capabilities; however, AT systems do

not meet the full EDS standards

required by the FAA for all categories of

explosives, amounts, detection rates,

and false alarm rates. The AT’s still

have more sophisticated detection

capabilities than the standard X-ray

systems used for imaging only. The

ETD’s also detect explosives, but differ

in that they are used to analyze and

detect minute amounts of explosive

residues or vapors, are much smaller in

size and less costly than the EDS’s and

AT’s, and are primarily used at

screening checkpoints to screen items

entering sterile areas.

The FAA currently is deploying

several types of advanced screening

technologies in the Nation’s airports.

Each advanced screening technology is

capable of detecting specific items. The

FAA believes that the most effective

approach to screening at this time is to

use a combination of these technologies

at screening locations.

Some of the technologies being

developed focus on the human element

of screening. The FAA currently is

developing and deploying computer

based training (CBT) and threat image

projection (TIP) systems that provide

initial and recurrent training and

monitor screener performance. The

potential benefits of CBT are self-paced

learning, enhanced opportunities for

realistic practice, combined training and

performance testing, and instruction

that is uniform throughout the country.

CBT currently is being used to train

screeners in many of the Nation’s

busiest airports, and the FAA is

evaluating its effectiveness at these

locations. The FAA anticipates making

CBT available for use by all of the

carriers but does not anticipate

requiring its use at this time. Some

private companies also are developing

CBT systems that may earn FAA

acceptance and the FAA encourages this

development.

TIP also has significant potential

benefits and is a critical component of

this proposed rule. TIP systems

currently are being deployed and tested

on both X-ray and explosives detection

systems. The TIP systems use two

different methods of projection—

fictional threat image (FTI) and

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 563

combined technology image (CTI). FTI

superimposes a threat image from an

extensive library of images onto the Xray image of actual passenger baggage

being screened. The image appears on

the monitor as if a threat object actually

exists within the passenger’s bag. The

screener can check whether the image is

an actual threat image before requesting

that the bag be screened further. The

CTI is a prefabricated image of an entire

threat bag and also can be electronically

inserted onto a display monitor. For

both types of images, screeners are

immediately provided with feedback on

their ability to detect each threat. TIP

exposes screeners to threats on a regular

basis to train them to become more

adept at detecting threats and to

enhance their vigilance. TIP allows the

FAA to expose screeners to the latest

potential threats and should allow the

FAA and the industry to determine

what elements make a screener more

effective, such as training methods and

experience levels. Future TIP data may

affect requirements proposed in the

security programs.

The FAA also is validating a series of

screener selection tests to help

screening companies identify applicants

who may have natural aptitudes to be

effective screeners. Currently, the

cognitive skills and processes for

optimal detection of threat objects are

poorly understood. The FAA sees an

immediate need to identify valid tests to

select job applicants who should be able

to become successful screeners. The

FAA currently is administering several

screener selection tests to groups of

screener trainees as part of their CBT

and then measuring their subsequent job

performance using TIP. If valid selection

tests are developed, the FAA may offer

them to carriers and screening

companies for optional use but does not

anticipate requiring their use at this

time.

The FAA will continue its human

factors research. Although the new

technologies described are highly

effective in detecting explosives, the

FAA realizes that each one is ultimately

dependent on the human operator.

Screeners are critical to the screening

process. Future human factors research

will focus on the attributes, skills, and

abilities that make for an effective

screener. Such elements may include an

individual’s cognitive ability, learned

skills, education level, quality and

amount of training, and experience (i.e.,

time on the job). Screener pay levels and

the quality of supervision may also

affect screener performance (i.e., threat

detection rates). Analyzing TIP data will

help the FAA to explore and confirm or

refute many hypotheses regarding the

factors that affect screener performance.

What is known currently is that each

type of screening and screening

technology is unique and requires

different skills and abilities. For

example, monitoring a walk-through

metal detector requires a limited

understanding of the technology

involved and does not involve image

interpretations. Conversely, operating

an EDS is much more complex and

requires operators to exercise

independent judgment as they interpret

and make decisions regarding images

that are all distinctly different. The

screening tasks described in these

examples require different types of

skills and abilities and require training

designed to optimize performance for

those particular tasks. The FAA’s

human factors research will attempt to

isolate these skills and abilities and

determine how they can best be

recognized and developed. With regard

to compensation, wages for screeners in

the United States currently average

$5.75 per hour and some screeners do

not receive fringe benefits. Average

annual screener turnover rates exceed

100 percent in many locations.

Screeners repeatedly state that low

wages and minimal benefits, along with

infrequent supervisor feedback and

frustrating working conditions, cause

them to seek employment elsewhere.

Experience in other countries seems

to indicate that higher compensation,

more training, and frequent testing of

their screeners may result in lower

turnover rates and more effective

screener performance. The FAA has

reports from many sources that

screening, particularly screening of

checked baggage, is conducted more

effectively in many other countries than

it is in the United States. U.S. citizens

traveling abroad also have expressed

concern that screening in the United

States appears to be less thorough than

it is in other countries. While the FAA

until recently did not have actual

performance data from other countries

to substantiate these views, it now has

test results that are strongly indicative

of better screener performance by some

European authorities than by some U.S.

screening operators. The test results

were derived from joint testing of

screeners that the FAA conducted with

a European country. FAA special agents

and government personnel from the

European country tested screeners in

each country using the same methods.

On average, screeners in the European

country were able to detect more than

twice as many test objects as screeners

in the United States. Screeners in the

European country receive significantly

more training and higher salaries than

screeners in the United States and

receive comprehensive benefits.

Screeners in the European country also

have more screening experience on

average than their United States

counterparts. U.S. air carriers and

screening companies may want to

pursue any and all of these factors to

achieve higher performance. The FAA

will continue to conduct research and

examine operational data to determine

how these factors affect screener

performance and retention, both

domestically and in conjunction with

foreign governments.

It is clear that the United States can

improve upon practices in many of

these human factors areas making its

aviation screening operations as strong

and effective as its other aviation

operations and endeavors. Several

issues related to human factors in

screening, such as performance and the

environment in which screeners work,

are addressed in this NPRM. The FAA

invites comments and supporting data

regarding human factors issues such as

the potential affects of increased wages,

benefits, experience, and training on

screener performance.

I.D. The Advance Notice of Proposed

Rulemaking (ANPRM)

In response to the Congressional

mandate and to the White House

Commission report, the FAA published

an ANPRM on March 17, 1997 (62 FR

12724), requesting comments on

certification of companies providing

security screening. The FAA received 20

comments from the public on the

ANPRM, all of which were substantive.

Subsequent to the publication of the

ANPRM, the FAA began field testing

threat image projection systems and

evaluating their potential for measuring

screener performance. The FAA

determined that the TIP systems would

be integral to proposing requirements

for performance measurements and

standards. Therefore, the FAA

published an ANPRM withdrawal

notice on May 13, 1998 (63 FR 26706),

to allow TIP to be adequately field

tested and validated before the FAA

proceeded with the rulemaking.

Although the ANPRM was withdrawn,

the FAA considered and incorporated

many of the commenters’ suggestions in

this proposal. The following is a brief

summary of the overall comments.

While commenters disagreed on

several issues, including the level of

oversight responsibility that air carriers

should have over certificated screening

companies, commenters generally

agreed that national standards for

security screening operations are

564 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

needed. Approximately one-third of the

commenters stated that certificating

individual screeners would have a

greater impact on improving security

than certificating screening companies.

Most of these commenters also stated

that certificating individual screeners

would improve screener

professionalism and performance.

Approximately half of the

commenters agreed that air carriers

conducting screening operations should

be subject to the same standards as

certificated screening companies. A

majority of commenters stated that the

same screening operation requirements

that apply to U.S. carriers should apply

to foreign carriers providing services in

this country. Several commenters

disagreed with any proposal by the FAA

to regulate joint-use checkpoints and

checkpoint operational configurations.

More detailed discussions of the issues

raised by commenters are provided

throughout the proposed rule section of

this preamble.

I.E. Related Rulemakings

On August 1, 1997, the FAA

published two NPRM’s. Notice No. 97–

12 (62 FR 41730) proposes to revise 14

CFR part 108 to update the overall

regulatory structure for air carrier

security. Notice No. 97–13 (62 FR

41760) proposes to revise 14 CFR part

107 to update the overall regulatory

structure for airport security. Notice No.

97–12 and notice No. 97–13 are the

result of several years of work by the

FAA, airports and air carriers, and the

Aviation Security Advisory Committee

(ASAC), a committee formed under the

Federal Advisory Committee Act (5

U.S.C., appendix II) in April 1989 by the

Secretary of Transportation.

This document proposes to amend the

proposed rule language of part 108 in

Notice No. 97–12 rather than the current

part 108. The numbering system for part

108 of this NPRM is based on the

numbering system for Notice No. 97–12.

The numbering systems for proposed

part 111 and revised part 109 are also

closely aligned with the Notice No. 97–

12 numbering system for clarity and

consistency.

II. The Proposal: Overview

This document has two objectives: to

propose procedures for certification of

screening companies; and to propose

other requirements to improve

screening, such as performance

measurements and new training and

FAA testing requirements for screeners.

The FAA believes that this proposal

would improve performance, improve

the consistency and quality of

screening, and meet the congressional

mandate stated in the Federal Aviation

Reauthorization Act of 1996 and the

intent of the White House Commission

recommendations.

This overview contains a summary of

the basic framework of the proposed

rule for certification of screening

companies. It also contains more

detailed discussions of some of the

approaches to regulating screening that

are implemented in the proposals and

the FAA’s reasons for using these

approaches.

II.A. Summary

The major proposals contained in part

111 and the changes and additions

proposed to parts 108, 109, and 129 are

as follows:

(1) The proposed rule would require

certification of all screening companies

that inspect persons or property for the

presence of any unauthorized explosive,

incendiary, or deadly or dangerous

weapon in the United States on behalf

of air carriers, indirect air carriers, or

foreign air carriers required to adopt and

carry out FAA-approved security

programs (proposed §§ 111.1 and

111.109(a)).

(2) The certification requirement

would include all persons conducting

screening within the United States

under parts 108, 109, and 129. An air

carrier, indirect air carrier, or foreign air

carrier that performs screening for itself

or for other carriers would have to

obtain a screening company certificate

(proposed §§ 108.201(h), 109.203(a), and

129.25(k)).

(3) The proposed rule would provide

for provisional certificates for new

screening companies and screening

companies already performing screening

at the time of publication of the final

rule. Before the end of the provisional

period, screening companies would

apply for screening company

certificates, that would be valid for 5

years (proposed § 111.109(d) and (e)).

(4) Responsibility for the performance

of a screening company would be borne

by the screening company and the

relevant air carrier(s), indirect air

carrier(s), or foreign air carrier(s).

Carrier oversight would be required

(proposed §§ 111.117; 108.103(b);

108.201(i) and (j); 109.103(b); 109.203(b)

and (c); and 129.25(c), (l), and (m)).

(5) The proposed rule would require

approvals of operations specifications

that would include locations of

screening sites; types of screening;

equipment and methods used to screen;

and screener training curricula

(proposed §§ 111.113 and 111.115).

(6) The proposed rule would require

that screening companies adopt and

implement FAA-approved screening

company security programs that would

include procedures to perform screening

functions, including operating

equipment; screener testing standards

and test administration requirements;

threat image projection standards,

operating requirements, and data

collection methods; and performance

standards (proposed §§ 111.103,

111.105, and 111.107).

(7) The proposed rule would set forth

requirements for screening companies

regarding the screening of persons and

property and the use of screening

equipment (proposed §§ 111.201 and

111.203).

(8) The proposed rule would add

requirements for the use of X-ray

systems to part 109 and for the use of

explosives detection systems to part 129

(proposed §§ 109.207 and 129.28).

(9) The proposed rule would provide

consolidated employment standards for

all screening company personnel,

including new training requirements for

screeners regarding courteous and

efficient screening and U.S. civil rights

laws and for supervisors regarding

leadership and management subjects

(proposed § 111.205).

(10) The proposed rule would require

that screening companies have qualified

management and technical personnel

(proposed § 111.209).

(11) The proposed rule would require

that screening instructors meet

minimum experience and training

standards (proposed § 111.211).

(12) The proposed rule would specify

training requirements for screening

companies regarding training programs

and knowledge of subject areas and

would require that the training

programs be submitted to the FAA for

approval (proposed § 111.213).

(13) The proposed rule would require

that all screening personnel pass

computerized FAA knowledge-based

and X-ray interpretation tests before and

after their on-the-job training and at the

conclusion of their recurrent training

and that the tests be monitored by

carrier personnel in accordance with the

carriers’ security programs. The

proposed rule would also describe and

prohibit specific instances of cheating

and other unauthorized conduct

(proposed §§ 111.215, 111.217, 108.229,

109.205, and 129.25(p)).

(14) The proposed rule would require

that all carriers install threat image

projection (TIP) systems on their X-ray

systems and that all air carriers and

foreign air carriers install TIP systems

on their explosives detection systems

unless otherwise authorized by the

Administrator. Screening companies

would be required to use the TIP

systems as specified in their security

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 565

programs, including collecting and

analyzing the TIP data, and to meet the

performance measurements and

standards set forth in their security

programs (proposed §§ 108.205 and

108.207; 129.26 and 129.28; 109.207;

and 111.223).

(15) The proposed rule would

prohibit interference with screening

personnel in the course of their

screening duties (proposed § 111.9).

In addition to the above proposed

changes, the proposal would amend part

191 to extend SSI requirements to

certificated screening companies and

their employees.

The FAA is not proposing to require

certifications for individual screeners,

as some commenters to the ANPRM

recommended. The FAA does not have

the statutory authority under Title 49 or

the Federal Aviation Reauthorization

Act of 1996 to require such certification.

Other requirements in this proposal

would help to improve the

professionalism of screeners; e.g., by

providing for mobility of screener

records (proposed § 111.221) and by

requiring letters of completion to be

issued to screeners and screener

supervisors upon their successful

completion of initial, recurrent, and

specialized courses of training

(proposed § 111.219).

The FAA has also decided not to

specifically address joint-use screening

locations in this rulemaking, although

comments were invited with respect to

this issue in the ANPRM. A joint-use

screening location is a security location

that is screening for multiple carriers.

The FAA received several comments to

the ANPRM that stated that an

agreement should be required for all air

carriers to sign with the managing air

carrier of a screening location. However,

other commenters stated that the

concept of joint-use screening locations

is an internal management tool of the air

carriers that allows flexibility. These

commenters believe that it is not

appropriate for the FAA to place undue

restraints on the management process

for joint-use screening locations. After

considering the ANPRM comments and

reviewing representative samples of

joint-use screening location agreements,

the FAA has determined that

rulemaking is not the best way to

address these issues. They would be

better addressed in future security

program amendments and/or

compliance and enforcement policies.

II.B. Certification of All Who Perform

Screening

This proposal would require that all

companies that perform screening be

certificated under part 111, even if they

are air carriers, foreign air carriers, or

indirect air carriers. This approach is

consistent with several comments to the

ANPRM that stated that air carriers

conducting screening should be subject

to the same standards as certificated

screening companies.

Certifying all screening companies,

including carriers that perform

screening, would:

• Provide uniform standards for all

companies that intend to provide

screening.

• Ensure that all companies that

conduct screening benefit from the

enhanced requirements imposed upon

screening companies in part 111.

• Clearly differentiate between the

roles of the air carriers, indirect air

carriers, and foreign air carriers as

carriers and as certificated screening

companies.

• Clarify the relationships among air

carriers, indirect air carriers, and foreign

air carriers that contract with each other

for screening services.

Some commenters to the ANPRM

questioned the need to certificate air

carriers for the purpose of screening

since they are already certificated by the

FAA. Air carriers currently are

certificated to operate as air carriers

under part 119. However, the

certification process in part 119 does

not include an evaluation of whether an

applicant can adequately perform

screening functions. The FAA has

determined that to fulfill the

congressional mandate, all who perform

screening shall establish their ability to

do so by qualifying for screening

company certificates. Any air carrier,

indirect air carrier, or foreign air carrier

that does not choose to hold a screening

company certificate could contract with

a certificated screening company to

perform its screening.

II.C. Roles of Carriers and Screening

Companies

Currently, carriers have statutory and

regulatory responsibilities to conduct

screening properly. The FAA cannot

propose to relieve carriers of these

responsibilities. The responsibility of air

carriers and foreign air carriers to ensure

that screening is conducted on persons

and property to be carried in the cabin

of an aircraft is in the statute (49 U.S.C.

44901(a)) and cannot be changed by the

FAA. As discussed previously, the

requirement to certificate screening

companies also is in the statute. Issues

arise, then, concerning the relationships

between the carriers and the screening

companies and the proper roles for

each. The FAA interprets these statutory

provisions as leaving the ultimate

responsibility for screening with the

carriers and providing for concurrent

carrier and screening company

responsibilities for some tasks. This

relationship is not unlike that between

repair stations and air carriers. Repair

stations are certificated under part 145

and are responsible for performing

maintenance in accordance with

regulations; however, the air carriers

remain ultimately responsible for the

airworthiness of their aircraft. The FAA

recognizes that this relationship may be

difficult to define, but proposes the

following general guidance.

The FAA envisions that the carriers

would continue to be responsible for

providing proper screening equipment,

such as X-ray machines and metal

detectors. The carriers would also have

primary responsibility to deal with the

airport operators on issues regarding the

locations of screening equipment in the

airports. Finally, and perhaps most

importantly, the carriers would be

responsible for overseeing the

performance of the screening companies

to ensure that they carry out their

duties.

The screening companies would be

responsible for inspecting persons and

property for unauthorized explosives,

incendiaries, and deadly or dangerous

weapons. They would be responsible for

ensuring that they use the equipment

properly, staff the screening locations

adequately, train their screeners

properly, and otherwise manage the

screening locations so as to enable them

to meet the standards for screening in

their security programs.

II.D. Compliance and Enforcement

Issues

As discussed previously, this

proposed rule would not shift the

responsibility for screening from air

carriers, indirect air carriers, and foreign

air carriers to screening companies.

Rather, certificating screening

companies is a way to assist carriers in

ensuring that those who conduct

screening are fully qualified to do so.

Certification also would make screening

companies directly accountable to the

FAA for failures to carry out their

screening duties. This rule would

increase the level of responsibility

required of screening companies while

improving screening oversight by air

carriers, indirect air carriers, and foreign

air carriers.

The FAA envisions that screening

companies would be primarily

responsible for the day-to-day operation

of the screening locations. Screening

companies generally would be held

accountable for screening location

failures. The FAA intends to look to

screening companies to maintain the

566 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

highest standards and to continuously

monitor and improve their capabilities.

The full range of actions would be

available for use against screening

companies that failed to comply with

the regulations, their operations

specifications, and their security

program. These include counseling,

administrative action (warning notices

and letters of correction), civil penalties,

and certificate actions (suspension or

revocation of a certificate). In addition,

if the screening company was unable to

carry out its duties at a specific

screening location, the FAA could

amend its operations specifications (see

§ 111.111) to withdraw its authority to

screen at that location.

If a company was removed from a

location because of its failure to screen

properly, the FAA would continue to

monitor closely that location as another

company came in to conduct screening.

The FAA is concerned about situations

in which incoming companies use the

same equipment and hire the same

employees from the unsatisfactory

companies and make no real changes in

the quality of screening. The FAA

would consider requiring incoming

companies to take additional corrective

measures to ensure that the problems

that affected the performance of the

previous companies do not recur.

Carriers would continue to be

responsible for the overall proper

screening of persons and property. They

would be directly accountable for failing

to carry out duties specifically assigned

to them, such as providing the proper

screening equipment and carrying out

specific oversight functions (such as

Ground Security Coordinator duties and

auditing functions). In addition, when a

screening company failed to screen

properly or otherwise failed to carry out

its duties, the FAA would carefully

evaluate all facts and circumstances to

determine whether the carrier should be

the subject of enforcement action. In

general, repeated or systemic failures of

a screening company to comply with the

regulations or fundamental failures of

the screeners to comply with security

requirements might lead to the

conclusion that the carrier has failed to

conduct screening properly or to

oversee the screening company’s

operations, even if the carrier had

conducted the required audits and did

not discover problems. The audits

would be one tool for the carrier to use

but would not limit its responsibility to

ensure proper screening. Carriers would

be expected to identify problems with

the screening company and take

corrective action in a timely manner.

If the FAA determines that a

screening company is performing

poorly, whether at a particular location

or in its overall operations, the FAA

could require the screening company

and/or the responsible air carriers to

implement additional security measures

under this proposal to maintain system

performance. Such additional measures

would vary depending on the

circumstances and might involve, for

example, additional training for

screeners, redundant screening of

property, or increased management

oversight. The measures could slow

screening operations at affected

locations but would help ensure that

thorough, effective screening was being

performed. If the additional measures

proved ineffective or if the

circumstances were extreme,

amendments of the screening

companies’ operations specifications or

suspensions or revocations of

certificates could result.

The proposal would require that each

air carrier or foreign air carrier required

by the FAA to implement additional

security measures to maintain system

performance notify the public of the

increased measures by posting signs at

affected screening locations (see section

IV.F.). The signs would be required to

state that the additional security

measures being implemented by the air

carriers could slow screening operations

at those locations, but that the measures

are necessary to ensure the safety and

security of flights. The proposal is

intended to ensure that the traveling

public is informed and to increase

screening company and air carrier

accountability for their operations. The

specific language and specifications to

be required for the signs would be

included in the security programs.

II.E. New Part 111

The FAA proposes to create a new

part 111, which would contain all the

requirements for screening companies.

Part 111 would require certification of

all screening companies that perform

screening for air carriers under part 108,

indirect air carriers under part 109, and

foreign air carriers under part 129.

The proposal would affect only the

screening that is done by inspecting

persons or property for the presence of

any unauthorized explosive, incendiary,

or deadly or dangerous weapon, as

required under parts 108, 109, and 129.

These inspections currently are

performed by a variety of methods such

as manual searches, metal detectors, Xray machines, explosives detection

systems, explosives trace detection

systems, and advanced technology

devices. The proposal would also

amend certain requirements in parts

108, 109, and 129 to accommodate the

proposed new part 111.

Forms of screening other than

inspection, such as determining that a

person is a law enforcement officer with

authority to carry a weapon on board

aircraft, would not be covered in part

111. These other forms of screening

would not have to be done by a

certificated screening company. These

types of screening would continue to be

the responsibility of the carriers. They

could be performed, as they are now, by

such methods as ticket agents checking

the documentation of law enforcement

officers flying armed, local law

enforcement officers at the checkpoint

checking the credentials of law

enforcement officers entering the sterile

area, or checkpoint security supervisors

checking the law enforcement officer’s

credentials. The checkpoint security

supervisors checking these credentials

would be doing so as representatives of

the carriers, rather than as part of their

duties for the certificated screening

companies.

II.F. Screening of Cargo

Certain cargo carried on passenger air

carriers must be screened. The FAA

considered whether this screening

should be done only by certificated

screening companies and has decided to

propose that it should be. If

unauthorized explosives or incendiaries

are introduced aboard passenger aircraft

in cargo, it would be just as devastating

as if introduced in checked or carry-on

baggage or on passengers. The FAA

believes that cargo also must be

subjected to rigorous screening controls

to avoid such a result.

Accordingly, the FAA proposes that

inspections of cargo for unauthorized

explosives and incendiaries be done

only by certificated screening

companies, similar to the proposal for

persons, accessible property, and

checked baggage. Under this proposal,

air carriers and foreign air carriers

carrying passengers would be required

to ensure that cargo screening is

conducted by certificated screening

companies. Indirect air carriers that

elect to perform required screening

(instead of referring their cargo to air

carriers or foreign air carriers for

required screening) also would be

required to hold screening company

certificates or contract with certificated

screening companies to perform the

screening. The FAA believes that a

comprehensive approach to certificating

all screening companies, including

companies that screen cargo, is vital to

having a safe, secure, and effective

aviation security system. The FAA

requests public comments on the issues

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 567

relating to certificating indirect air

carriers in this NPRM.

II.G. Screening Standard Security

Program (SSSP)

In addition to the regulatory

requirements, the proposed rule would

establish a separate security program for

screening companies that would

accompany the requirements in

proposed part 111. The Screening

Standard Security Program (SSSP)

would contain detailed and sensitive

requirements relating to screening that

currently are contained in the carrier

security programs, as well as additional

requirements related to proposals in

part 111. The carriers as well as the

screening companies would be required

to ensure that their screening

companies’ security programs are

carried out.

The FAA considered proposing that

screening companies be required to

comply with the standardized security

programs for air carriers, foreign air

carriers, and indirect air carriers.

Requiring screening companies to

comply with the ACSSP, MSP, and

IACSSP would emphasize that the

carriers are primarily responsible for

ensuring that screening is properly

carried out. It would also prevent

having to relocate the screening-related

language from the carrier security

programs to the screening standard

security program. However, the FAA

recognizes that this system could result

in confusion in some cases where

screening companies might have to

observe portions of three different

security programs—the ACSSP, the

MSP, and the IACSSP. Having a

separate security program for screening

companies would also more clearly

delineate the responsibilities of

screening companies and those of the

carriers, which would continue to be

responsible for proper screening. Both

part 111 and the Screening Standard

Security Program would state that the

requirements also are applicable to

carriers that conduct screening.

The FAA requests comments on

consolidating all screening-related

program requirements into one

screening standard security program.

The FAA has prepared a draft SSSP

proposal to accompany the release of

this NPRM. Commenters with a need to

know, as specified in 14 CFR part 191,

may request copies of the draft proposed

SSSP from the Office of Civil Aviation

Security Policy and Planning as listed in

the section titled FOR FURTHER

INFORMATION CONTACT.

II.H. Screener Qualifications

As discussed in section I.C., it is

critical that screeners be highly

qualified in order to counter the

increasing sophistication of the threats.

This proposal contains a number of

provisions to promote improved

qualifications of screeners. Most notable

are the proposed requirements to

include FAA testing standards for

screening personnel, test administration

requirements for carriers, and additional

monitoring of screener performance

made possible by TIP as discussed in

section II.I.

Under this proposal, screeners would

be required to pass knowledge-based

and X-ray interpretation tests developed

by the FAA before beginning on-the-job

training. This would help to ensure that

all screeners have uniform

understanding of their tasks and a

consistent high level of achievement.

The FAA would provide the tests by

amending the screening companies’

security programs through notice and

comment procedures and would expect

the screening companies to train their

personnel to pass those tests. Screening

companies would have flexibility in

designing their training programs and

would submit them to the FAA for

approval. The FAA is not proposing that

training programs be designed in a

specific manner, only that they

thoroughly and effectively address all of

the testing standard subjects. The

proposal also would require that the

carriers administer and monitor the tests

to promote carrier involvement in the

training process and to establish closer

accountability for the administration of

the training tests.

II.I. Performance Measurements and

Standards

For the FAA, carriers, and screening

companies to monitor the performance

of screening companies and to track

their level of performance, a consistent

means of regularly measuring

performance is needed. The FAA,

carriers, and screening companies need

to be able to monitor how well screeners

are detecting threat objects and must be

able to determine whether performance

is decreasing and whether corrective

measures are needed. The FAA, carriers,

and screening companies need to be

able to measure performance of a

screening location to determine what

factors lead to better or worse detection

and what corrective measures are

effective.

Factors that may lead to better or

worse detection include the amount of

passenger traffic, the type of training

that the screeners receive, how often

screener functions are rotated, and the

conditions under which screeners are

working. The FAA, carriers, and

screening companies also need to

determine which types of threat objects

the screeners can readily detect and

which types they have difficulty

detecting. All of these factors can be

analyzed along with other elements that

may affect screening ability, such as

education level, screening experience,

and screener compensation levels. The

analyses would be used by the FAA to

work more effectively with screening

companies and carriers to improve

screening continuously. Further, it

appears that regular testing of screeners

promotes vigilance. Frequent testing can

increase screeners’ ability to recognize

threats that they rarely, if ever,

encounter in reality but must be ready

to detect should the unlikely event

occur.

In order to monitor screening

performance and to examine the effects

of all of these factors, the means of

measuring performance must be

consistent, reliable, cost effective, and

frequent. The two options for

conducting testing are anonymous

testing by individuals and computer

testing. The FAA and the carriers now

rely on testing conducted by

individuals. Carriers currently are

required to test each screener

periodically, as set forth in their

security programs.

The FAA uses FAA employees to

submit for screening items of baggage

that contain test objects that will appear

on the X-ray screens to be weapons or

explosives. There are a number of

limitations involved with this method,

however. For instance, the FAA tests

cannot be conducted frequently at many

screening locations due to the large

number of airports in the United States

and their diverse locations. The FAA

must arrange for different employees to

travel to airports and have them change

their appearance after each test to

prevent the screeners from recognizing

them as FAA testers. It is therefore very

difficult, costly, and labor-intensive to

obtain a large number of tests that

accurately measure screeners’ success

rates and that provide a continuous

measure of the success of screening

locations, either overall or under

specific conditions. Further, when

screening personnel realize that the

FAA is conducting tests, they

sometimes alert other nearby screening

locations to expect testing, which can

skew the testing results. Because FAA

testing is infrequent at many locations,

it also can limit the number and variety

of test objects that the screeners are

exposed to. Also, because the tests are

568 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

conducted by individuals, there is the

possibility that different FAA

employees will apply the test protocols

differently, which also could skew the

testing results.

To deal with these problems, the FAA

has developed TIP, discussed

previously in section I.C. This

computer-based system is capable of

introducing test objects to screeners on

the X-ray and EDS systems at various

rates set on the computers. The TIP

program can be set to run the entire time

that a screening location is in use. Test

items can be easily added to or changed

by simply loading new images or

parameters into the computers,

providing an efficient means to

regularly expose screeners to the most

recent and sophisticated threats. The

success rates can easily be recorded and

later analyzed by the FAA, carriers, and

screening companies to monitor

continuously how well the screening

locations are operating.

The FAA has conducted validation

testing of TIP. In addition, at one

location one screening company

conducted extensive testing of TIP and

provided its data to the FAA for

analysis. The FAA determined that the

detailed results of the FAA and

screening company testing should not

be made available to the general public

because they could be used to attempt

to discover ways to defeat the screening

system; therefore, the FAA has

determined that this information is

sensitive security information under 14

CFR part 191. Air carriers, foreign air

carriers, and indirect air carriers that

have security programs under parts 108,

129, and 109, respectively, may obtain

further information on these tests and

the FAA’s analysis by contacting the

Office of Civil Aviation Security Policy

and Planning as listed in the section

titled FOR FURTHER INFORMATION

CONTACT. Screening companies that are

screening for carriers may obtain copies

of the testing results through their

carriers. Comments on the data and

analyses should be submitted to the

Office of Civil Aviation Security Policy

and Planning, rather than to the public

docket, because of the sensitivity of the

information.

Based on all of the data gathered to

date, the FAA has determined that TIP

is an effective and reliable means to

measure screener performance.

Accordingly, the proposed rule would

require the use of threat image

projection systems on all X-ray and

explosives detection systems. TIP would

be installed over a period of time as

specified in the security programs. The

specific TIP equipment requirements

acceptable to the Administrator would

be set forth in the carriers’ security

programs. The screening companies and

carriers would be required to download

the data or allow the FAA to download

the data in accordance with standards

that would be adopted in the security

programs through notice and comment

procedures. The screening companies

and carriers would be able to download

the data at any time to monitor their

own performance.

The results of TIP would be used to

monitor the performance of screening

locations, screening companies, and

individual screeners. TIP operational

data would be analyzed to focus

resources on most effectively improving

screening to detect threats. TIP data can

be used to determine such things as

what working conditions lead to better

performance, on which topics the

screeners need further instruction, and

what corrective action or training

programs prove to be most successful.

The FAA would look at the success

rates of screeners detecting various

kinds of test objects, the success rates at

different times of day and during

different traffic levels, and the other

factors that may affect screening

effectiveness.

TIP also serves as a continuous means

of on-the-job training for screeners.

Screeners report that being exposed to

TIP images keeps them alert and

interested, supplements their classroom

training, and fosters healthy

competition among them to

continuously improve their detection

rates. The use of TIP provides screeners

with immediate feedback regarding their

performance and indicates specific areas

for improvement.

The FAA anticipates that in the

future, TIP data may provide a basis not

only to monitor the performance of

screening locations but also to establish

performance standards. Under such a

system, the screening companies and

carriers could be required to meet the

standards set forth in their security

programs for the detection of various

threat objects. For instance, the FAA

anticipates that it would analyze TIP

data to determine the range of screening

company detection rates in the United

States. It might then set minimum

detection percentages that each

screening company would have to meet

based on the higher detection rates

within the range. The minimum

detection percentages could be

incrementally raised as overall screener

performance in the United States rises.

The performance standards might vary

depending on such factors as the

screening system being used and the

type of threat object. Initially, however,

the FAA could implement overall

performance measurement requirements

whereby the FAA would collect

performance data from all TIP systems

installed in the United States and then

require corrective action of the

screening companies with the lowest

performance. These performance

standards would be developed based on

extensive additional data from TIP

systems.

The FAA would propose to add these

performance measurement and

performance standard requirements as

amendments to the security programs

through notice and comment

procedures. Including these

requirements in the security programs

would protect them as sensitive security

information and allow for flexibility in

changing the standards as screening

company performance improves in the

United States. The use of TIP systems to

establish performance measurements

and ultimately performance standards

would allow the FAA to monitor closely

the performance of screening

companies.

If performance standards were

adopted in the security programs,

screening companies and carriers that

the FAA determined were not

performing to specified standards could

be held accountable in any number of

ways, as discussed in section II.D.

The FAA currently tests other forms

of screening, such as walk-through

metal detectors and handwands, similar

to the way it currently tests X-ray

screening. The FAA may in the future

develop performance standards for other

screening equipment and proposed

amendments to the security programs

would be issued.

III. Proposed Part 111: Section-bySection Discussion

Proposed part 111 would prescribe

the requirements for screening company

certifications and operations. Part 111

would apply to all screening companies,

whether they are performing screening

under part 108, 109, or 129. Carriers

would be required to ensure that their

screening operations, whether

conducted by the carriers themselves or

by screening companies with which the

carriers contract, are conducted in

accordance with part 111 requirements.

Subpart A would contain general

information relating to applicability,

definitions, inspection authority,

falsification, and prohibition against

interference with screening personnel

and is described in paragraphs III.A.

through III.E. Subpart B would prescribe

requirements for security programs,

screening company certificates,

operations specifications, and carrier

oversight and is described in paragraphs

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 569

III.F. through III.K. Subpart C would

prescribe requirements relating to

screening operations such as the

screening of persons and property, the

use of screening equipment,

employment standards, screening

company manager and instructor

qualifications, training and testing, and

performance measurement and

standards among others and is described

in paragraphs III.L. through III.W. The

following discussion provides details on

each part 111 requirement.

Subpart A—General

III.A. § 111.1 Applicability

Proposed § 111.1 states that the part

would prescribe the requirements for

the certification and operation of

screening companies. The requirements

in proposed part 111 would apply to

each screening company that screens for

an air carrier under part 108, for an

indirect air carrier under part 109, or for

a foreign air carrier under part 129. The

proposed requirements would also

apply to the air carriers (including those

air carriers voluntarily adopting aviation

security programs), indirect air carriers,

and foreign air carriers that are

responsible for conducting, and

therefore overseeing, screening

operations. Portions of proposed part

111 would also apply to two groups of

individuals: all persons conducting

screening within the United States

under parts 111, 108, 109 and 129 and

all persons who interact with screening

personnel during screening. ‘‘Person’’ as

defined in 14 CFR 1.1 means ‘‘an

individual, firm, partnership,

corporation, company, association,

joint-stock association, or governmental

entity.’’

The certification requirements in the

proposed rule would apply only to

screening companies performing

screening in the United States. The FAA

does not propose at this time to certify

screening companies that perform

screening for air carriers at foreign

airports. Screening in other countries is

performed either by the host

governments or by private sector

screening companies, but under the

authority and operational control of the

host governments. However, where air

carriers have operational control over

screening outside of the United States

they would be required under this

proposal to carry out and comply with

all relevant sections of part 111 to the

extent allowable by local law, with the

exception of those requirements related

to screening company certification.

III.B. § 111.3 Definitions

Proposed § 111.3 would define for the

purpose of part 111 ‘‘carrier,’’

‘‘screening company,’’ ‘‘screening

company security program,’’ and

‘‘screening location.’’ The proposed

definitions are needed to clarify the use

of these terms in the proposed rule

language.

The term ‘‘carrier’’ would be defined

for the purposes of parts 108, 109, 111,

and 129 to refer to an air carrier, an

indirect air carrier, or a foreign air

carrier.

The term ‘‘screening company’’ would

be defined to mean an air carrier,

indirect air carrier, foreign air carrier, or

other entity that inspects persons or

property for the presence of any

unauthorized explosive, incendiary, or

deadly or dangerous weapon, as

required under part 111 and 108, 109,

or 129, before their entry into a sterile

area or carriage aboard an aircraft.

The term ‘‘screening company

security program’’ would be defined to

mean the security program approved by

the Administrator under this part.

The term ‘‘screening location’’ would

be defined to mean any site at which

persons or property are inspected for the

presence of any unauthorized explosive,

incendiary, or deadly or dangerous

weapon. Examples of screening

locations are checkpoints where persons

and accessible property are screened,

ticket counters and baggage makeup

rooms where checked bags may be

screened, and cargo areas where cargo

may be screened.

Additional terms to be defined in the

part 108 final rule would also apply to

part 111, as would any other definitions

contained in parts 109 and 129 of the

chapter. Of particular relevance to this

rule are the definitions for ‘‘cargo’’ and

‘‘checked baggage.’’

The term ‘‘cargo’’ would be defined in

part 108 to mean property tendered for

air transportation accounted for on an

air waybill. All accompanied

commercial courier consignments,

whether or not accounted for on an air

waybill, are also classified as cargo.

Security programs further define the

term cargo.

The term ‘‘checked baggage’’ would

be defined in part 108 to mean property

tendered by or on behalf of a passenger

and accepted by an air carrier for

transport, which will be inaccessible to

passengers during flight. Accompanied

commercial courier consignments are

not classified as checked baggage.

III.C. § 111.5 Inspection Authority

This proposed section would clarify

that a screening company shall allow

FAA inspections and tests to determine

its compliance with part 111, its

security program, and its operations

specifications. The screening company

shall also allow FAA inspections and

tests of equipment and procedures at

screening locations that relate to carrier

compliance with their regulations. This

proposed section would also require

screening companies to provide the

FAA with evidence of compliance. Both

of these proposed requirements are

similar to those in proposed § 108.5 of

Notice No. 97–12.

III.D. § 111.7 Falsification

This proposed section would apply

falsification requirements to screening

companies that are similar to those that

apply under current § 108.4. While the

provisions of § 108.4 apply to matters

involving screening, the inclusion of a

falsification rule in part 111 would

serve to emphasize the requirements.

Under this rule, no person would be

permitted to make or cause to be made

any fraudulent or intentionally false

statement in any application for any

security program, certificate, or

operations specifications or any

amendment thereto under part 111. No

person would be permitted to make or

cause to be made any fraudulent or

intentionally false entry in any record or

report that would be kept, made, or used

to show compliance with part 111 or to

exercise any privileges under part 111.

Also, any reproduction or alteration for

fraudulent purpose of any report,

record, security program, certificate, or

operations specifications issued under

part 111 would be subject to civil

penalties under this proposed rule.

There are also criminal statutes that

might apply to such activities.

III.E. § 111.9 Prohibition Against

Interference with Screening Personnel

The proposed rule would include new

requirements prohibiting any person

from interfering with, assaulting,

threatening, or intimidating screening

personnel in the performance of their

screening duties. The proposed rule is

intended to prohibit interference that

might distract or inhibit a screener from

effectively performing his or her duties.

This rule is necessary to emphasize the

importance to safety and security of

protecting screeners from undue

distractions or attempts to intimidate.

Previous instances of such distractions

have included excessive verbal abuse of

screeners by passengers and certain air

carrier employees. Screeners

encountering these situations are taken

away from their normal duties to deal

with the disruptive people, which may

affect the screening of other people. The

570 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

disruptive persons may be attempting to

discourage the screeners from being as

thorough as required. Screeners may

also need to summon checkpoint

screening supervisors and law

enforcement officers, taking them away

from other duties. Checkpoint

disruptions can be potentially

dangerous in these situations. This

proposal would help support screeners’

efforts to be thorough and would help

prevent persons from unduly interfering

with the screening process. This

proposed rule is similar to 14 CFR

§ 91.11, which prohibits interference

with crewmembers aboard aircraft and

which also is essential to passenger

safety and security. Note that this

proposed rule is not intended to prevent

good-faith questions from persons

seeking to understand the screening of

their persons or property. But abusive,

distractive behavior and attempts to

prevent screeners from performing

required screening would be subject to

civil penalties under this proposed rule.

Subpart B—Security Program,

Certificate, and Operations

Specifications

III.F. § 111.101 Performance of

Screening

Proposed § 111.101 states that each

screening company shall conduct

screening and screener training in

compliance with the requirements of

part 111, its approved screening

company security program (see section

III.G.), its approved operations

specifications, and applicable portions

of security directives (SD) and

emergency amendments (EA) to security

programs. When a response to an

imminent threat is required, the FAA

issues SD’s to air carriers under current

§ 108.18, and EA’s to foreign air carriers

and indirect air carriers under §§ 129.25

and 109.5, to require immediate action

and response to the threat.

SD’s and EA’s may be issued to

carriers to help them respond to threats

that require quick responses. SD’s and

EA’s typically involve a range of

differing requirements, only a portion of

which may pertain to how the screening

companies shall perform their duties.

Currently, carriers are required to

provide to their screening companies

any screening-related information from

SD’s and EA’s and any other applicable

information pertaining to threats.

Carriers extract the screening-related

requirements from the SD’s and EA’s

and forward them to the screening

companies.

It appears that the most efficient

means for the FAA to issue the SD and

EA requirements to screening

companies would be to continue the

practice of issuing them to the carriers,

who then provide appropriate

information to their screening

companies. It would be inefficient for

the FAA to attempt to issue two

different SD or EA documents, one with

the requirements solely applicable to

screening companies and one with all of

the requirements for the carriers.

Moreover, this emphasizes the ultimate

statutory and regulatory responsibilities

of the carriers to perform aviation

security screening and to ensure that

screening companies carry out the

requirements in the SD’s and EA’s.

III.G. §§ 111.103; 111.105; and 111.107

Security Programs

As discussed in II.G., the FAA is

proposing to establish a separate

security program to accompany

proposed part 111. The Screening

Standard Security Program (SSSP)

would contain requirements for

screening persons, accessible property,

checked baggage, and cargo for air

carriers, foreign air carriers, and indirect

air carriers. This would consolidate all

of the screening-related requirements

into a single source that screening

companies could use to carry out their

duties. The ACSSP would continue to

contain the nonpublic details regarding

the air carriers’ responsibility to

conduct screening under part 108, as

would the MSP for foreign air carriers

and the IACSSP for indirect air carriers.

However, much of the screening

information to be contained in the

Screening Standard Security Program

would be relocated from the ACSSP,

MSP, and IACSSP.

Under the proposal, screening

companies would be directly

responsible for compliance with their

security programs and might be subject

to enforcement actions if they fail to

comply. Screening companies would

therefore have a strong interest in

complying with the program

requirements. Carriers would continue

to have an interest in the screening

requirements in the security programs,

because they would remain responsible

for their implementation and oversight

by statute and in the case of air carriers

and foreign air carriers would be

transporting the persons and property

being screened. As part of their

oversight responsibilities, carriers

would be required to have access to,

understand, and make available to the

FAA upon request copies of the security

programs of the companies with which

they contract.

Under the proposal, the sections

pertaining to security program

requirements are organized in the same

format that is used in Notice No. 97–12

for part 108. Proposed § 111.103 would

be titled ‘‘Security program: adoption

and implementation’’ and would require

that each screening company adopt and

carry out an FAA-approved screening

company security program that meets

the requirements of proposed § 111.105.

Proposed § 111.105 would be titled

‘‘Security program: form, content, and

availability’’ and would provide specific

requirements for security programs.

Proposed § 111.107 would be titled

‘‘Security program: approval and

amendments’’ and would describe the

procedures for approvals of and

amendments to security programs.

Proposed § 111.105 would be divided

into three paragraphs. Paragraph (a)

would state that a security program

shall provide for the safety of persons

and property traveling on flights

provided by the air carriers and/or

foreign air carriers for which a screening

company screens against acts of

criminal violence and air piracy and the

introduction of explosives, incendiaries,

or deadly or dangerous weapons. This

same wording appears under proposed

§ 108.103 of Notice No. 97–12 for air

carriers, as both parties are responsible

for passenger safety. Paragraph (a)

would also require that screening

company screening performance

coordinators (see section III.P.)

acknowledge receipt of amendments to

their programs in signed, written

statements to the FAA within 72 hours.

The security programs would have to

contain the items listed under paragraph

(b) of § 111.105 and be approved by the

Administrator.

Proposed § 111.105(b) would list three

items that a screening company’s

security program shall include at a

minimum. The security program shall

include the following: the procedures

used to perform the screening functions

specified in proposed § 111.201; the

testing standards and training

guidelines for screening personnel and

instructors; and the performance

standards and operating requirements

for threat image projection systems.

These requirements are further

explained in the detailed discussions of

the sections.

Proposed § 111.105(c) would describe

logistical and availability requirements

related to a security program. A

screening company would be required

to maintain at least one complete copy

of its security program at its principal

business office and at each airport

served and to make a copy of the

program available for inspection upon

the request of an FAA special agent. All

screening companies and applicants for

screening company certificates,

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 571

regardless of type, would be required to

restrict the availability of information in

their security programs to those persons

with an operational need to know in

accordance with § 191.5 and refer

requests for such information by other

persons to the Administrator. All of

these requirements are similar to the

requirements for air carriers under

proposed § 108.105.

Proposed § 111.107 would be divided

into four sections: ‘‘Approval of security

program,’’ ‘‘Amendment requested by a

screening company,’’ Amendment by

the FAA,’’ and ‘‘Emergency

amendments.’’ The proposed language

is based on the language in proposed

§ 108.105 (Notice No. 97–12) with the

exception of the following changes

unique to screening companies.

Proposed § 111.107(a) would differ

from proposed § 108.105 (Notice No.

97–12) in several ways due to the

proposed application process for

screening company certifications. The

language would state that unless

otherwise authorized by the Assistant

Administrator, each screening company

required to have a security program

under this part would be required to

submit a signed, written statement to

the Assistant Administrator within 30

days of receiving the SSSP from the

FAA indicating what its intentions are

for adopting and carrying out a security

program. A screening company could

choose to adopt the SSSP as is or adopt

the SSSP after making amendments to

it. If a screening company chooses to

adopt the SSSP without changing it, the

granting of a screening company

certificate by the Assistant

Administrator would serve as FAA

approval of the SSSP. If the screening

company chooses to adopt the SSSP

after making amendments to it, the

Assistant Administrator would either

approve the proposed security program

within 30 days or give the screening

company written notice to modify its

program to comply with the applicable

security program requirements. The

remaining procedures for accepting a

notice to modify or petition the notice

would be the same as the procedures in

proposed § 108.105 of Notice No. 97–12.

In this case as well, the Assistant

Administrator’s granting a screening

company certificate to the screening

company would serve as FAA approval

of the screening company’s security

program.

Under proposed § 111.107(b), once a

screening company is employed by one

or more carriers, it would be required to

include in any application for

amendment to its security program a

statement that all carriers for which it

screens have been advised of the

proposed amendment and have no

objection to it. The screening company

would also be required to include the

name and phone number for each

individual who was advised at each

carrier. This would ensure that

screening companies would have the

opportunity to apply to amend their

security programs, and also would

ensure that carriers would be aware of

the applications and have no objections

to them. Because carriers would retain

primary responsibility for screening, it

would be essential that they concur

with any changes requested by

screening companies that screen on

their behalf.

Under proposed § 111.107(c) and (d),

if the FAA were to seek to amend a

portion of a security program that covers

the activities of screening companies, it

would provide to screening companies

notice and opportunity to comment.

Carriers would also be notified and

provided opportunities to comment

regarding proposed changes to the SSSP

that apply to their operations. In the

case of an emergency, there would be no

prior notice or opportunity to comment.

III.H. § 111.109 Screening Company

Certificate

Certificate required. Proposed

§ 111.109(a) states that a screening

company may not perform required

screening except under the authority of

and in accordance with the provisions

of a screening company certificate.

Section 302 of the Federal Aviation

Reauthorization Act of 1996 (Public Law

104–264, 49 U.S.C. 44935 note) requires

the Administrator to certificate

companies providing security screening.

The FAA proposes to certificate

screening companies under 49 U.S.C.

44707, which provides for examinations

and ratings of air agencies. Under that

section, certain pilot schools (14 CFR

part 141) and repair stations (14 CFR

part 145) hold air agency certificates.

That section also permits certifications

of ‘‘other air agencies the Administrator

decides are necessary in the public

interest’’ (49 U.S.C. 44707(3)).

By certificating screening companies

under section 44707 as air agencies, the

companies would be under the

requirements of 49 U.S.C. 44709. That

section makes clear that the

Administrator may re-inspect an air

agency at any time. Section 44709 also

contains the procedure by which the

Administrator may amend, modify,

suspend, or revoke a certificate. This

procedure includes an air agency’s right

to appeal to the National Transportation

Safety Board an order amending,

modifying, suspending, or revoking its

certificate. The Board’s procedure for

hearing such appeals, found at 49 CFR

part 821, includes a hearing before an

administrative law judge and an appeal

to the full Board. A party may petition

the U.S. Court of Appeals to review a

decision of the Board. In this way, a

screening company would receive full

due process if the FAA were to take

action against its certificate.

Application for a screening company

certificate. Under proposed § 111.109(b),

an application for a screening company

certificate shall be made in a form and

manner prescribed by the

Administrator. The FAA anticipates a

two-phase application process as

follows. A company interested in

applying for certification as a screening

company would write to the FAA to

request application instructions. The

application instructions would require

the applicant to submit several items in

writing in a standard format. This same

application package would eventually

become the screening company’s

operations specifications if the company

is approved for certification. (See next

preamble section for discussion of

operations specifications.) The

completed application package would

be submitted to the FAA as part of

phase one and would contain the

following items: the name of the

applicant’s company; the company’s

address; incorporation and tax

identification information; a letter of

intent; an organization chart; a

description of the company’s ability to

perform and comply with regulations;

the name of the company’s chief

executive officer; the names, titles,

qualifications, and references for the

screening performance coordinators;

and the company’s procedures for

safeguarding and distributing sensitive

security information under part 191.

Upon receiving an application

package, the FAA would review and

verify all relevant information. This

review might include verifying past

employment and training references for

the company’s screening performance

coordinator. Once the FAA completes

its review, it would notify the applicant

and provide the applicant with a copy

of the Screening Standard Security

Program (SSSP). The applicant would

need the security program to complete

phase two of the application process.

After obtaining a copy of the SSSP,

the applicant would review it to

determine whether the company wants

to adopt the SSSP as is or amend it to

incorporate additional company-specific

information. The applicant would be

instructed to inform the FAA of its

decision regarding the SSSP in writing

within 30 days of receipt of the SSSP.

At that time or soon thereafter the

572 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

applicant would prepare and submit to

the FAA a copy of its training

curriculum and any FAA-requested

changes to its original application. (See

later discussions regarding these

requirements in this notice.) The FAA

would provide guidance to the

applicant in preparing these documents,

as needed. The applicant would submit

the documents as part of phase two, and

the FAA would review them. If the FAA

finds that the documents from phase

two meet all requirements, they would

be combined with the phase one

documents and signed by the

Administrator as the company’s

operations specifications. The

Administrator would then issue the

company a screening company

certificate. If changes are needed, the

FAA would request that the applicant

make the specific amendments and

resubmit them before the Administrator

would issue a certificate.

Issuance and renewal-general. Under

proposed § 111.109(c), an applicant

would be entitled to a certificate if the

applicant applies not less than 90 days

before the applicant intends to begin

screening or the applicant’s certificate

expires; the Administrator determines

that the applicant has met the

requirements of this part for the type of

screening certificate requested; the

issuance would not be contrary to

public safety and security; and, unless

otherwise authorized by the

Administrator, the applicant has not

had a screening company certificate

revoked within the past 12 months.

Under proposed § 111.109(c)(2), the

applicant would have to be able to meet

the requirements of this part, to include

adopting and carrying out an FAAapproved security program and

approved operations specifications for it

to be issued a provisional screening

company certificate. Proposed

§ 111.109(c)(3) would describe the

requirements that a screening company

would have to meet for issuance or

renewal of its 5-year screening company

certificate. Failure to meet the

performance standards set forth in its

security program would be grounds for

denial of the screening company

certificate. Under proposed

§ 111.109(c)(5), if the FAA revokes a

screening company’s certificate, the

company would have to wait 1 year

before a new certificate could be issued

unless otherwise authorized by the

FAA. This would ensure that the

company that had proven unqualified to

hold its certificate could not

immediately seek a new certificate. This

provision is similar to a provision in 49

U.S.C. 44703(c), which relates to airmen

certificates.

Provisional Certificates. Under

proposed paragraph (d), companies that

do not hold screening company

certificates would be able to apply for

provisional screening company

certificates. The FAA would issue a

provisional certificate to an applicant if

the Administrator finds that the

applicant is able to meet the

requirements of this part, to include

adopting and carrying out an FAAapproved security program and

approved operations specifications

(proposed § 111.109(c)(2)). The

applicant for the provisional screening

certificate would be subject to FAA

investigation and required to show that

it has met the requirements of this part.

Under proposed § 111.109(g)(1), a

provisional screening company

certificate would expire at the end of the

12th month after the month in which it

was issued.

The purpose of the proposed

provisional certificate would be to

provide a probationary period for the

FAA to monitor a company’s screening

performance. During that year, a new

screening company would undergo

rigorous scrutiny by the FAA, during

which time the company would have to

demonstrate that it has met the

requirements for FAA certification. If

before the end of the 12-month period

the new screening company has met the

requirements of this part, and had

adopted and carried out an FAAapproved security program and

approved operations specifications, the

company would be able to apply for and

may be granted a certificate. In

accordance with § 111.109(c)(1), the

screening company would be required

to apply for a screening certificate not

less than 60 days before the expiration

of the provisional certificate. Companies

that cannot demonstrate that they are

qualified during the year or that do not

meet the performance standards

specified in the security program would

be denied certification.

The proposed requirements for using

a provisional certificate are consistent

with several comments to the Advanced

Notice of Proposed Rulemaking that

stated that new companies should have

to operate in a provisional status during

which time the FAA would perform

compliance and records audits.

Under proposed § 111.109(d)(2), the

holder of a provisional certificate would

not begin screening at a screening

location without first giving the

Administrator 7 days’ notice, unless

otherwise authorized by the

Administrator. This notice would allow

the FAA to monitor the startup of new

company operations at each location.

The FAA anticipates that this

requirement for 7 days’ notice would

not result in any start-up delays should

a new company replace a company

whose operations are decertified at a

location. The FAA anticipates that it

usually would notify the responsible

carriers in advance that they must

replace their existing screening

company with a different company if

performance does not improve within a

certain amount of time. This advance

notification to the carriers would allow

them ample time to make arrangements

with a new company, if necessary, and

to provide the required 7 days’ notice to

the FAA. If for some reason the FAA

was unable to notify carriers in advance,

it would have the authority to waive the

7 days’ notice to keep the screening

location in operation.

Screening company certificate. Under

proposed § 111.109(e), the holder of a

provisional screening company

certificate could be issued a screening

company certificate. The certificate

would expire at the end of the 60th

month after the month in which it is

issued (proposed § 111.109(g)(2)). To

issue or renew a screening company

certificate, the Administrator would

have to determine that the applicant has

met the requirements of part 111, to

include adopting and carrying out an

FAA-approved security program and

approved operations specifications, and

has implemented applicable portions of

the security directives (proposed

§ 111.109(c)(3)).

As part of its renewal procedures, the

FAA would consider the company’s

performance under the performance

standards that could be added to the

company’s security program. As

discussed in section II.I., the FAA

anticipates using threat image projection

(TIP) data to measure a screening

company’s overall performance for Xray and EDS machines and eventually

amending the SSSP to include

performance standards. This data would

then be used to help evaluate whether

a screening company certificate should

be issued or renewed.

The FAA is proposing that a

certificate be valid for 60 months. The

screening company would be required

to apply for a renewal at least 60 days

before the expiration date in order to

continue screening operations. The 60-

month (5-year) renewal would allow the

benefits of renewal without creating an

undue burden on the screening

company. As with carriers, the FAA

would inspect screening companies

regularly and would continually

monitor operations and tests to

determine that each screening company

is in compliance with the regulations,

its security program, and its operations

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 573

specifications. This would result in

consistent and close monitoring of

screening operations. If significant

deficiencies are found during the 5-year

period, the FAA would take appropriate

action to require correction of those

deficiencies or if necessary would

revoke the screening company’s

certificate. In addition, requiring a 5-

year renewal of a screening company’s

certificate would create a more in-depth

review than that conducted during

periodic inspections. Before the FAA

would renew a certificate, it would

review the company’s operations

specifications (including the training

curriculum), required records, the

results of FAA inspections and any

enforcement actions that were taken,

performance data, and any other

relevant information.

There are several precedents in the

FAA regulations for periodic renewals

of certificates and approvals. For

example, exemptions from certain

Federal Aviation Regulations are

typically issued for 3 years, and Special

Federal Aviation Regulations (SFAR)

rarely are issued for longer than 5 years.

The duration of pilot school certificates

in part 145 is 24 months. Having a

specific duration encourages a thorough

review of any changes in the

environment of a company, such as the

addition of new equipment or an

increase in the size of operations, as

well as a review of past performance

and an evaluation of what should be

done to improve performance if

necessary.

The FAA considered proposing a

shorter duration for the screening

company certificates but decided to

propose the 60-month duration as a

reasonable option for obtaining the most

benefits with the least burden. The FAA

invites comments on the costs and

benefits of the proposed duration and of

a shorter duration such as 2 or 3 years.

Certificate contents. Proposed

paragraph § 111.109(f) lists the

information that would be contained on

a certificate, such as the name of a

company and a certificate number,

certificate issuance date, and expiration

date.

Proposed compliance. The FAA is

considering how much time after the

publication of the final rule should be

given for carriers and screening

companies to come into compliance.

The FAA proposes in paragraph

§ 111.109(k) that the effective date for

the final rule be 60 days after its

publication in the Federal Register. As

of that date, no company could begin

screening under part 108, 109, or 129

unless it holds a screening company

certificate.

The FAA also proposes, however, to

provide some accommodation for

existing screening companies. There are

many companies that have been

providing required screening services

for years. The FAA has observed their

operations and is familiar with these

companies. The FAA proposes in

§ 111.109(k) that companies actively

screening at any time during the year

before the date of publication of the

final rule be able to continue screening

after the effective date if they submit

applications for provisional certificates

within 60 days after publication of the

final rule. The FAA would review the

applications and issue provisional

certificates to those qualified. A

company that applied on time and that

submitted complete and accurate

documentation as required would be

able to continue screening unless and

until it is issued a denial of its

application.

After an existing screening company

receives its provisional certificate, it

would be subject to a rigorous

application process to achieve

certification. The company would be

required to achieve certification before

the expiration of its provisional

certificate in order to continue

screening. Existing screening companies

could apply for certificates any time

after they receive provisional certificates

but not later than 60 days before the

expiration of their provisional

certificates.

Duration. In addition to establishing a

12-month provisional certificate and a

60-month certificate (discussed

previously), proposed § 111.109(g)(3)

would provide that a certificate would

expire if a screening company has not

provided required screening during the

previous 12 months. Under this

provision, a company not actively

screening and maintaining its

proficiency could lose its authority to

screen. If the company intends to screen

again, it would need to apply for a

provisional certificate.

A screening company would have the

responsibility for keeping track of its

compliance with this requirement and

for returning its certificate, as required

in § 111.109(h), if it has automatically

expired. During the FAA’s yearly

inspections of screening locations, it

intends to compare its list of screening

companies with those companies that

are performing screening at locations. If

a screening company does not appear to

have a screening location, the FAA

would check with the company to

determine when it last conducted

screening for a carrier.

Proposed paragraph (h) would require

the holder of a screening company

certificate that is expired, suspended, or

revoked to return the certificate to the

Administrator within 7 days.

Suspension or revocation of a certificate

would follow established procedures for

certificates issued by the FAA such as

airport, air carrier, and airmen

certificates (see earlier discussion of this

issue in ‘‘Certificate required’’).

Amendment. Under proposed

§ 111.109(i), a screening company

would be required to apply for an

amendment to its certificate to change

any of the information listed on the

certificate, such as the name of the

screening company, and/or any names

under which it would do business.

Inspection. Under proposed

§ 111.109(j), screening company

certificates would be made available for

inspection upon request of the

Administrator.

III.I. §§ 111.111; 111.113; and 111.115

Operations specifications

Under proposed § 111.111, screening

companies would be required to have

approved operations specifications

before they could perform screening.

Screening companies would prepare

operations specifications with FAA

guidance. Under proposed § 111.115,

during the application process for a

provisional certificate, a company

would submit its operations

specifications to the FAA for approval.

Once the operations specifications have

been approved, the screening company

would not need to obtain subsequent

approval when it applies for a certificate

or renews its certificate. However, the

FAA would review the operations

specifications to consider whether

changes are needed. Further FAA

approval of operations specifications

would only be necessary if the screening

company seeks to amend its operations

specifications. The proposed

requirements for approvals and

amendments of operations

specifications would follow the same

process as is currently provided for air

carrier security programs.

Under proposed § 111.113, operations

specifications would list the following

items: the locations at which a company

may conduct screening; the types of

screening that the company is

authorized to perform (persons,

accessible property, checked baggage,

and cargo); the equipment and methods

of screening that the company may

employ; the name of the company’s

screening performance coordinator

(SPC) (see discussion in the next section

of this preamble); the procedures for

notifying the Administrator and any

carrier for which the company is

performing screening if an equipment or

574 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

facility failure makes the performance of

adequate screening impracticable; and

the curriculum used to train persons

performing screening functions. The

operations specifications would also be

required to contain a statement signed

by the person required by § 111.209(b)

on behalf of the company, confirming

that the information is true and correct.

The operations specifications would

also contain any other information that

the Administrator would deem

necessary. Portions of the above items

and the format may be provided by the

Administrator as standard operations

specifications.

Screening companies in most cases

would be authorized to screen at all

locations in the United States. However,

where a special circumstance occurs,

the FAA would have the ability to

amend a screening company’s

operations specifications to limit the

company’s authority to screen at a

particular location in accordance with

the procedure in § 108.105(c). One

example would be where the FAA is

deploying new technology that required

a high degree of oversight, such as the

recent deployments of explosives

detection systems. In such a case, the

FAA might limit the locations at which

a screening company could operate the

new technology. Another example

would be where a company

demonstrates an inability or

unwillingness to comply with required

procedures at one location, but at other

locations is in compliance. The FAA

could amend the company’s operations

specifications to remove the company’s

authority to operate at the one location.

If the company later comes into

compliance at that location the

operations specifications could be

amended to restore its authority to

screen there.

Operations specifications would list

the types of screening that companies

are authorized to perform. This

requirement would emphasize the

different capabilities and needs of the

various companies that perform

screening. For instance, cargo screening

involves procedures different from those

for screening persons. A company’s

required operations specifications,

including its training program, would

reflect the type(s) of screening that it

would be authorized to perform.

The operations specifications would

include the equipment and methods of

screening that the Administrator has

authorized the company to operate and

carry out. Examples include manual

searches of items, metal detector

inspections of persons, and X-ray

inspections. The operations

specifications would also include

procedures for notifying the

Administrator and the carrier(s) for

which the company is performing

screening in the event that the

procedures, facilities, or equipment that

the company is using are not adequate

for it to perform screening. Each

company’s operations specifications,

including its training program, would

specify the methods and equipment on

which it was authorized. There shall be

a training curriculum for each type of

equipment that a company operates in

performing screening. The training

program curriculum would have to be

approved as part of the operations

specifications before the company

would be certificated as a screening

company.

Proposed § 111.113(c) would require a

screening company to maintain a

complete copy of its operations

specifications at its principal business

office and at each airport where it

conducts security screening. The

screening company would also have to

ensure that the operations specifications

are amended to remain current and

made available to the Administrator

upon request. The screening company

would be required to provide a current

copy of its operations specifications to

the carrier(s) for which it screens. The

screening company would also be

required to restrict the availability of

information in its operations

specifications to those persons with an

operational need to know. Persons with

an operational need to know are

specified in § 191.5(b). The screening

company would be required to direct to

the Administrator requests for

information that is in operations

specifications if the requests are from

persons other than persons with an

operational need to know. These

proposed requirements would be

necessary to ensure that operations

specifications are available to persons

who need to know them and at the same

time to protect security sensitive

information in the operations

specifications. Furthermore, these

requirements would ensure that carriers

have current copies of screening

companies’ operations specifications for

monitoring and auditing purposes.

III.J. § 111.117 Oversight by air

carriers, foreign air carriers, or indirect

air carriers

Proposed § 111.117(a) would make

clear that each screening company

holding a certificate under part 111

would be required to allow any air

carrier, indirect air carrier, or foreign air

carrier for which it performs screening

to inspect its facilities, equipment, and

records to determine its compliance

with part 111, its security program, and

operations specifications. The proposed

regulation would also require that a

screening company allow any carrier for

which the company is performing

screening to test the screening

company’s screening personnel using

the procedures specified in the

applicable security program. This is a

natural consequence of the fact that

carriers are ultimately responsible for

proper screening and must be able to

ensure that their screening companies

are in compliance and that screening

personnel are performing adequately.

Because the carriers are ultimately

responsible for screening and contract

with screening companies to perform

the service on their behalf, the FAA

does not consider it essential from a

legal standpoint to include proposed

§ 111.117. However, it appears that

inclusion of this section may avoid

confusion concerning the roles of the

carriers and screening companies. The

FAA requests comments on whether to

include this section in the final rule.

If a carrier chooses to hold a screening

company certificate and to conduct

screening at a particular location on its

own behalf, it would still have to

perform oversight functions. In its

capacity as a screening company, it

would be responsible for day-to-day

operations; in its capacity as a carrier,

it would have to audit and test the

performance of its screening functions.

Any other carrier using that screening

location also would be responsible for

auditing and testing the carrier in its

capacity as a screening company.

In performing oversight

responsibilities, the carriers need to

know when the FAA discovers

significant compliance problems with

the screening companies. Currently,

when the FAA discovers an alleged

violation, it typically brings it to the

attention of the appropriate carrier(s) to

initiate corrective action as soon as

possible. This often is done in a

discussion with the station manager or

other carrier official at the time of the

inspection. Depending on the

circumstances, enforcement action may

be taken later. The FAA envisions that

if it finds an alleged violation

committed by a screening company, it

would discuss the matter not only with

the screening company, but also with

the relevant carrier(s).

The FAA also proposes in

§ 111.117(b) that each screening

company shall provide a copy of each

letter of investigation and final

enforcement action to each carrier using

the screening location where the alleged

violation occurred. Final enforcement

actions include warning letters, letters

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 575

of correction, orders assessing civil

penalties, and orders of suspension and

revocation. The screening company

would be required to provide a copy to

each applicable carrier’s corporate

security officer within 3 business days

of receipt of the letter of correction or

final enforcement action. This proposed

requirement would assist the carriers(s)

in evaluating the performance of the

screening company. Such enforcement

actions could include warning notices

and letters of correction, civil penalty

actions, suspensions or revocations of

certificates, cease and desist orders, or

other actions. The FAA proposes that a

screening company would have to

provide copies of these documents to

only those carriers for which it

conducted screening at the location of

an alleged violation, rather than to all

carriers for which it conducted

screening nationwide. The proposed

requirement to provide the copies

within 3 business days of receipt would

ensure that the carrier(s) receive(s)

timely notice.

The FAA considered proposing that

the FAA would provide copies directly

to the carriers involved. However, the

FAA believes that this responsibility

more correctly belongs with the

screening companies. A screening

company should keep the carriers for

which it is performing screening

informed of the company’s compliance

status. During its regular inspections of

screening companies, the FAA would

check to make certain that the screening

companies are keeping carriers

informed. The FAA requests comments

on any alternative means for keeping the

carriers informed of their screening

companies’ compliance.

III.K. § 111.119 Business office

Under the proposal, each certificated

security screening company would be

required to have a principal business

office with mailing address and would

be required to notify the Administrator

of any address changes. The FAA would

not expect all files to be maintained at

the business office. Most files would be

retained onsite and be available for

inspection.

Subpart C—Operations

III.L. § 111.201 Screening of persons

and property and acceptance of cargo

The language in proposed § 111.201 is

similar to the proposed language

contained in § 108.201 for air carriers

(Notice No. 97–12). The FAA is not

proposing to remove any of the language

from proposed § 108.201 or from similar

language in § 129.25, because the

carriers will remain responsible under

statute for screening persons and

property. This proposal does, however,

include similar provisions under

proposed § 111.201, because screening

companies are the primary screeners of

persons and property in most situations,

and they must be aware of and be held

accountable for their screening

responsibilities.

Under proposed § 111.201(a), each

screening company would be required

to use the procedures included in its

approved screening company security

program to inspect each person and his

or her accessible property entering a

sterile area. Under proposed

§ 111.201(a), each screening company

would also be required to deter and

prevent the introduction into a sterile

area of any explosive, incendiary, or

deadly or dangerous weapon on or

about each person or the person’s

accessible property.

Note that this NPRM also proposes to

change the wording in § 108.201(a) and

(b) to indicate that the screening

procedures, facilities, and equipment

may also be described in the screening

companies’ approved security programs

as well as in the air carriers’ approved

security programs. The FAA expects

that differing requirements would

appear in one or the other of the

programs, depending on the

requirement. Similar requirements also

appear in proposed § 109.201 for

indirect air carriers and in existing

§ 129.25 for foreign air carriers. These

changes are further explained in the

detailed proposed rule discussion for

parts 108, 109, and 129.

Under proposed § 111.201(b), each

screening company would be required

to deny entry into a sterile area at a

checkpoint to the following: any person

who does not consent to a search of his

or her person in accordance with the

screening system prescribed in

paragraph (a) of this section; and any

property of any person who does not

consent to a search or inspection of that

property in accordance with the

screening system prescribed by

paragraph (a) of this section.

Proposed § 111.201(c) would state

that the provisions of paragraph (a) of

§ 111.201, with respect to firearms and

weapons, would not apply to law

enforcement personnel required to carry

firearms or other weapons while in the

performance of their duties at the

airport; persons authorized to carry

firearms in accordance with § 108.213,

108.215, 108.217, or 129.27 of the

chapter; and persons authorized to carry

firearms in sterile areas under FAAapproved or FAA-accepted security

programs.

Under proposed § 111.201(d), each

screening company would be required

to staff the screening locations that it

operates with supervisory and

nonsupervisory personnel in accordance

with the standards specified in its

security program. This language is

similar to the language contained in

proposed § 108.201(g) of Notice No. 97–

12; however, it would be relocated to

part 111 because screening companies

are responsible for their own staffing.

Also, the words ‘‘security screening

checkpoints’’ would be replaced with

the words ‘‘screening locations’’ to

include screening that is conducted at

checkpoints and at other locations.

Under proposed § 111.201(e), each

screening company would be required

to use the procedures included in its

approved security program to inspect

checked baggage, or cargo presented for

inspection by a carrier, and therefore

prevent or deter the carriage of

explosives or incendiaries in checked

baggage or cargo onboard passenger

aircraft. This language is similar to the

language contained in proposed

§ 108.201(h) of Notice No. 97–12;

however, it has been amended to more

clearly indicate this requirement’s

applicability to checked baggage and

cargo.

III.M. § 111.203 Use of screening

equipment

Under proposed § 111.203(a), each

screening company would be required

to operate all screening equipment in

accordance with its approved security

program. This equipment would include

metal detectors, X-ray systems,

explosives detection systems, explosives

trace detectors, and any other screening

equipment that is approved for use by

the FAA. In most cases, the carriers that

contract with the screening companies

for their screening services own and

maintain the equipment and provide it

to the screening companies for their use.

While screening companies would be

responsible for the day-to-day

operational testing and operation of the

equipment, the carriers would still

retain responsibility for the calibration

and maintenance of the equipment.

Proposed § 111.203(b)–(d) would

contain several X-ray-related

requirements that were originally

included as part of § 108.205 (see Notice

No. 97–12) but which the FAA is

proposing to relocate to proposed part

111, because they are functions that

screening companies typically carry out.

Specifically, some of the language from

proposed § 108.205 would be repeated

in § 111.203 and amended to apply to

screening companies. Proposed

§ 111.203(b) would state that the

576 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

Administrator authorizes certificated

screening companies to use X-ray

systems for inspecting property under

approved screening company security

programs if several items are met. A

screening company would be required

to show that it has established a

mandatory program for the initial and

recurrent training of operators of the Xray systems, which includes training in

radiation safety, the efficient use of Xray systems, and the identification of

unauthorized weapons, explosives,

incendiaries, and other dangerous

articles. The screening company also

would be required to show that the Xray systems that it operates meet the

imaging requirements set forth in its

approved security program. These

requirements are currently contained in

the carrier standard security programs

but would be relocated to the screening

standard security program to

accompany the relocation of these

requirements.

Under proposed § 111.203(c),

screening companies would be required

to inspect individuals’ photographic

equipment and film packages without

exposure to X-ray or explosives

detection systems if requested by the

individuals. Proposed § 111.203(d)

would require that each screening

company comply with any X-ray

operator duty time limitations specified

in its approved security program.

As will be explained in the detailed

proposed rule discussion for parts 108,

109, and 129, all requirements related to

the use of X-ray systems would also be

extended to indirect air carriers and

their screening companies. The

proposed § 111.203 requirements above

would also apply to indirect air carriers.

All remaining requirements related to

the use of X-ray systems would remain

in parts 108 and 129 and be included in

part 109 as carrier responsibilities.

These requirements involve conducting

radiation surveys, meeting imaging

requirements, meeting Food and Drug

Administration (FDA) standards and

compliance standards regarding FDA

defect notices or modification orders,

and meeting other equipment-related

requirements.

III.N. § 111.205 Employment standards

for screening personnel

Under existing regulations,

employment standards for screening

personnel are provided as requirements

for air carriers under § 108.31 (proposed

§ 108.209), for foreign air carriers under

their model security program (MSP),

and for indirect air carriers under their

security program. Since these

requirements include standards

regarding the screening personnel to be

hired by screening companies, the FAA

proposes to relocate them from part 108,

the MSP, and the IACSSP to part 111,

and assign responsibility for them to

screening companies. This would

establish one consolidated list of

employment standards for all screeners

performing screening in the United

States.

The consolidation of all employment

standards would impose some

additional requirements on screeners

performing screening for air carriers,

foreign air carriers, and indirect air

carriers. Under proposed

§ 111.205(a)(2), two additional

requirements would be added for

screeners performing screening for air

carriers and foreign air carriers, which

were incorporated in recent cargorelated security program amendments.

First, under proposed § 111.205(a)(2)(i),

screeners would have to be able to

identify the components that might

constitute an explosive or an

incendiary. Second, under proposed

§ 111.205(a)(2)(ii), screeners would have

to be able to identify objects that appear

to match those items described in all

current security directives and

emergency amendments. The addition

of these proposals and other proposals

below would result in the

rearrangement of the numbering

structure of proposed § 108.209(a)(2)

(Notice No. 97–12).

Another proposal under

§ 111.205(a)(2)(iii) would require that

screeners operating both X-ray and

explosives detection system equipment

be able to distinguish on the equipment

monitors the appropriate imaging

standards specified in the screening

companies’ approved security programs.

The FAA is proposing to amend this

requirement that already exists in part

108 to include explosives detection

systems and to change the location of all

screener employment standards from

the carrier programs to the screening

companies’ security programs.

Screeners performing screening for

foreign air carriers operating their own

screening checkpoints in the United

States theoretically would have to meet

additional standards under this

proposal that currently are not required

of them. Specific differences from the

current MSP standards and this

proposal are that these proposed rule

requirements would expand the English

language requirements, add education

requirements, add specific screener

evaluation requirements, and provide

allowances for special circumstances.

Most foreign air carriers, however, use

screening checkpoints operated by U.S.

air carriers, and all of these foreign air

carriers already voluntarily comply with

the existing 14 CFR part 108

employment standards to be consistent

and to allow for screener shift rotations

with screening checkpoints operated by

domestic air carriers.

Screeners performing cargo screening

may also have to meet an additional

standard under this proposal that is not

currently required of them. Under

proposed § 111.205(a)(1), these

screeners would be required to have

high school diplomas, general

equivalency diplomas, or combinations

of education and experience that the

screening companies have determined

to have equipped the persons to perform

the duties of their positions. No other

new standards would be required of

screeners performing cargo screening.

The FAA may revisit the current

screener education requirements after

threat image projection (TIP) data

becomes available regarding education

level as it relates to screener

performance. If it appears from the data

that different employment standards are

appropriate, the FAA would propose

such standards for comment and make

the supporting data available to the

carriers and screening companies.

In addition to relocating the

standards, a proposed requirement

would be added to § 111.205(a)(4)

stating that initial and recurrent training

for all screeners shall include screening

persons in a courteous and efficient

manner and in compliance with the

applicable civil rights laws of the

United States. The statute requires that

FAA rules for passenger screening

ensure the courteous and efficient

treatment of passengers by air carriers or

foreign air carriers or agents or

employees of air carriers or foreign air

carriers (49 U.S.C. 44903(b)(3)(B)).

Further, there are a number of laws

requiring air carriers to observe the civil

rights of persons (e.g., see 42 U.S.C.

1981, 2000a, and 2000d; and 49 U.S.C.

41310 and 41702). The FAA and the

DOT’s Office of the Secretary have

received reports that some screeners

were discourteous and might have

discriminated against certain

individuals. The FAA proposes to

require that in initial and recurrent

training, screeners receive instruction in

screening in a courteous and efficient

manner and in compliance with the

civil rights laws. For instance, it would

not be appropriate for a screener to

subject a person to increased inspection

based on the screener’s view that the

person appears to be of an ethnic group

that the screener considers of a higher

threat to air transportation. Further,

while different methods are required to

screen persons in wheelchairs, persons

with implanted medical devices that

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 577

may alarm the metal detector, and other

persons with certain disabilities,

screeners are required to be courteous

and to avoid violating the civil rights

laws while they conduct the screening.

(See, e.g., 49 U.S.C. 41705 and 14 CFR

part 382, and § 382.49 in particular.)

Training would help ensure that

screeners are aware of their duties in

this regard.

Proposed § 111.205(a)(5) would

require persons with supervisory

screening duties to have initial and

recurrent training that includes

leadership and management subjects. In

response to noted deficiencies in

training for checkpoint security

supervisory personnel and a

determination that they lacked

communication skills training,

leadership development, and general

supervisory skills training, the FAA

developed the Supervisor Effectiveness

Training (SET) Program which focuses

on communication and leadership

skills. While the SET program is

intended to serve as a model for

teaching these supervisory subjects, it is

not required at this time. However, the

FAA intends to propose for comment

specific standards that the leadership

and management training for checkpoint

supervisors shall meet in the SSSP, and

the SET Program would meet those

standards.

The FAA is seeking comments on

whether additional or different selection

and employment standards are

appropriate to improve the screening

companies’ ability to hire qualified,

effective screeners.

III.O. § 111.207 Disclosure of sensitive

security information

Certain information related to civil

aviation security must be protected from

unauthorized disclosure because it

could be used to attempt to defeat the

security system if it falls into the wrong

hands. In § 191.7 the FAA has

designated this information as sensitive

security information (SSI). SSI includes

information about security programs,

technical specifications of certain

screening equipment and objects used to

test screening equipment, and other

information. Under § 191.3, the FAA

does not disclose such information.

Under § 191.5, carriers are required to

protect SSI from disclosure, including

disclosing it to only those with a need

to know.

Some SSI must be revealed to persons

being trained to be screeners. There is

a high rate of turnover among screener

trainees, however. A large portion of the

trainees do not complete training. It is

advisable to avoid providing SSI to

those who will never need it to perform

security duties. The FAA therefore is

proposing that the appropriate steps of

the employment history, verification,

and criminal history records checks that

air carriers or airport operators are

required to conduct are carried out

before trainees are given SSI during

training.

Airport operators are required to

ensure that persons with unescorted

access to security identification display

areas (SIDA) have their checks

completed beforehand (see § 107.31).

The checks may be carried out by the

airport operators or the air carriers. Air

carriers are required to ensure that

checks are completed on certain

persons, including persons who screen

passengers or property that will be

carried into the cabins of aircraft (see

§ 108.33; to appear as § 108.221 under

Notice No. 97–12). Most persons who

screen cargo and checked baggage are

either also qualified to screen persons

and property that will be carried into

aircraft cabins, and/or have unescorted

access to SIDA’s and therefore will be

subject to the checks in § 107.31 or

108.33.

The checks required under current

§ 107.31 or 108.33 are in two parts. In

most cases, only part 1 is required. Part

1 includes the individuals providing

certain information on applications,

with the air carriers or airport operators

verifying selected parts of that

information. If certain conditions

(triggers) are discovered during part 1

(such as an individual is unable to

support statements made on his or her

application form), the air carriers or

airport operators shall accomplish part

2 of the checks, which involves criminal

history records checks based on

fingerprints.

The FAA proposes under § 111.207

that each screening company would be

required to ensure that no SSI is

provided to a screener trainee who will

be required to have an employment

history verification until part 1 of the

trainee’s check is completed. If the

individual has a history of a

disqualifying crime set forth in § 107.31

or 108.33, that individual would not be

permitted to screen persons or property

to be carried into aircraft cabins and

thus would not be eligible to be a

screener. Under the statute, if a part 2

criminal history records check is

needed, an individual may be employed

as a screener until his or her check is

completed if the person is subject to

supervision (see 49 U.S.C.

44936(a)(1)(D)). This means that the

person would be permitted to receive

SSI unless or until his or her records

check reveals a disqualifying crime.

The FAA considered duplicating

these employment history and

verification requirements in proposed

part 111 for screening companies but

did not because the statute makes the air

carriers responsible for the checks; only

the air carriers, not the screening

companies, can obtain the criminal

histories that may be called for under

proposed § 108.221 (current § 108.33). If

an airport operator or an air carrier

completes part 1, the screening

company would have to receive

confirmation from one of them

indicating that it has been completed.

Many airport operators or air carriers

authorize screening companies to obtain

applicants’ part 1 employment history

information and verify the applicants’

most recent 5 years of employment

history. In these situations, the airport

operators or air carriers are responsible

for ensuring that the screening

companies are complying with these

requirements.

III.P. § 111.209 Screening company

management

This proposed section would require

that each screening company have

sufficient qualified management and

technical personnel to ensure the

highest degree of safety in its screening.

This is based on a requirement in

§ 119.65(a) that applies to air carriers

operating under part 121.

Proposed § 111.209(b) would require

that each screening company have a

screening performance coordinator

(SPC). The SPC would, at a minimum,

be responsible for monitoring the

quality and performance of screening at

each screening location and ensuring

that corrective action is taken to remedy

any performance deficiencies. The SPC

would also serve as the primary point of

contact for the company for FAA and

carrier communications regarding

security-related issues. In most cases the

FAA anticipates that the SPC’s would be

responsible for managing the screening

operations for their companies.

Management experience, technical

training, and knowledge of screeningrelated information would be critical to

SPC’s effectiveness in their positions.

Under the proposed rule, an SPC

would be required to have successfully

completed the initial security screener

training course, including the X-ray

interpretation portion of the course and

the end-of-course FAA exam. The SPC’s

completion of initial security screener

training would ensure that he or she

would have formal training in the

screener’s job. The SPC would not be

required to complete the on-the-job

portion of the training, because he or

she would not actually perform required

578 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

screening, and it would not be necessary

for the SPC to accomplish the same

level of proficiency as that required of

a screener. The FAA requests comments

regarding which portions of the training

that the SPC’s should be required to

successfully complete in order to

manage screening operations effectively.

Furthermore, to ensure that the SPC’s

have management skills and practical

experience in the aviation security

environment necessary to act as SPC’s,

proposed § 111.209(b)(1)(i) would

require that each SPC have at least 1

year of supervisory or managerial

experience within the last 3 years in a

position that exercised control over any

aviation security screening required

under part 108, 109 or 129. This

requirement is intended to provide

SPC’s with solid experience and

knowledge bases regarding managing

and coordinating aviation screening

operations, including knowledge to

apply new procedures and technologies.

The proposal would include exceptions

in § 111.209(d) for those who screen

only cargo for indirect air carriers

(IAC’s) under part 109. During the 3-

year period following the publication of

the final rule, a person who does not

satisfy the experience requirements of

§ 111.209(b)(1)(i) would be able to serve

as SPC for IAC screening operations if

authorized to do so by the

Administrator. IAC’s have not been

involved in screening for very long, and

there might be few individuals who

could meet this standard at first. In

deciding to grant exceptions, the FAA

would consider such factors as

individuals’ other management

experience, nonmanagement screening

experience or training, and security

experience other than aviation

screening.

The name and business address of an

SPC would be listed in the screening

company’s operations specifications. If a

change in SPC’s or a vacancy occurs, the

screening company would be required

to notify the Administrator within 10

days of the change under proposed

§ 111.209(b)(2).

Under proposed § 111.209(c), each

SPC would be required to have a

working knowledge of parts 111 and 191

and part 108, 109, or 129, as applicable;

his or her screening company’s security

program; his or her screening company’s

operations specifications; relevant

statutes; and relevant technical

information or manuals regarding

screening equipment, security

directives, advisory circulars, and

information circulars on aviation

security. This proposed requirement

would help to ensure that each SPC has

a satisfactory understanding of the

fundamental regulatory and statutory

requirements for screening operations

and that he or she understands the

challenges involved with screening.

Well-trained, experienced SPC’s would

be better able to manage safe, effective,

professional screening operations. These

requirements are based on the

management requirements in

§ § 119.65–119.71 for air carriers. The

requirements are consistent with

comments received on the ANPRM that

stated that management personnel

should be required to have aviation

screening experience, training, and

knowledge.

III.Q. § 111.211 Screening company

instructor qualifications

As discussed in II.H., it is increasingly

important that screeners be well

qualified and receive proper training

from qualified instructors. Under

proposed § 111.211, screening company

instructors would have to have a

minimum of 40 hours of actual

experience as security screeners making

independent judgments and pass the

FAA screener knowledge-based and

performance tests for each type of

screening to be taught and for the

procedures and equipment for which

the instructors would be providing

training. Each instructor would also

have to be briefed regarding the

objectives and standards of each course

taught.

The emphasis with this proposal is to

ensure that screening companies

employ instructors with important

minimum qualifications. Requiring

screening instructors to have actual

experience as screeners would allow

them to better understand the

challenges involved in screening and to

relay helpful, realistic advice and

information to screener trainees.

Requiring instructors to pass the FAA

screener knowledge-based and

performance tests in each area of

screening taught would help ensure that

the instructors have attained the

knowledge and, as applicable, the skills

and abilities needed to be effective as

instructors. The FAA expects that

screening companies would hire

instructors who are knowledgeable

about the screening process, who are

able to demonstrate correctly screening

procedures to trainees, and who can

effectively and thoroughly communicate

screening-related objectives and lesson

plans to trainees. Conducting on-the-job

training would keep instructors

proficient regarding screening

technologies and procedures.

III.R. § 111.213 Training and

knowledge of persons with screeningrelated duties

The language in proposed § 111.213

mirrors parts of the proposed language

contained in § 108.227 for air carriers

(Notice No. 97–12). Under proposed

§ 111.213(a), no screening company

would be permitted to use any screener,

screener-in-charge, or checkpoint

security supervisor unless that person

had received training as specified in its

approved screening company security

program, including the responsibilities

in § 111.105. Under § 111.213(c), each

screening company would be required

to ensure that screeners, screeners-incharge, or checkpoint security

supervisors have knowledge of the

provisions of part 111, the screening

company’s security program, and any

applicable security directive (SD),

emergency amendment (EA), and

information circular (IC) information to

the extent that such individuals need to

know this information to perform their

duties.

Proposed §§ 111.213(b) would require

that each screening company submit its

training program for screeners, screeners

in charge, and checkpoint security

supervisors to the Administrator for

approval. Each training program should

address the subject material contained

in the security program’s training and

testing standards. The FAA proposes to

create a performance-based training

environment where screening

companies would be expected to train

their screening personnel to pass

specific tests developed by the FAA.

The FAA proposes to do away with the

hourly training requirements for initial

and recurrent training and give

screening companies the flexibility to

train their screeners using their own

FAA-approved training programs.

Screening companies would be

responsible for ensuring that their

trainees are able to pass an FAA

knowledge-based and, if applicable, Xray interpretation test at the end of their

initial training and that their screening

personnel are meeting performance

standards thereafter (see proposed

§ 111.215 for discussion regarding FAA

tests). The FAA testing standards would

encompass the subjects currently

outlined in the Air Carrier Standard

Security Program and might include

additional standards regarding, for

example, operating new screening

technologies. The testing standards

would differ for tests of persons who

will screen persons and accessible

property, checked baggage, and cargo,

because each type of screening has some

different features. As discussed above,

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 579

the FAA is developing computer-based

instruction and has made this available

for use by the industry.

In addition to the testing standards,

the Screening Standard Security

Program also would contain a list of

subjects and types of training that the

FAA would require that screening

companies brief and demonstrate to

their trainees. Trainees might not be

tested on all of the subjects, but the

information would be critical to their

positions and performance. Examples of

training standards would be

demonstrating effective handwanding

and manual search techniques,

demonstrating a variety of improvised

explosive device configurations, and

briefing trainees on the definition of

sensitive security information (SSI) and

why SSI must be protected.

III.S. § 111.215 Training tests:

requirements

This proposed section would

introduce several new requirements all

related to testing screeners at the

completion of their classroom training

sessions. The provisions would impose

more control and consistency in the

training environment, emphasize the

importance of proper training and

testing, and promote professionalism by

both trainees and instructors. The

proposals under this section are similar

to other FAA regulations related to

testing, such as those required for pilots

and flight instructors under 14 CFR part

61. They are designed to help ensure

that screener trainees have attained the

knowledge and skills that they need to

perform their jobs effectively.

Currently, air carriers can design and

administer their own written tests for

screeners. The tests usually consist of

approximately 20 basic multiple-choice

questions (the knowledge-based

portion), and the air carriers have

latitude in choosing the subject matter

to be addressed and in designing the

questions. The performance-based

portion of the tests often consists of Xray interpretation scenarios using

overhead slides.

Proposed § 111.215(a) would require

that each screener trainee pass one

standardized FAA screener readiness

test for each type of screening to be

performed (persons, accessible property,

checked baggage, and cargo) and for the

procedures and equipment to be used

prior to beginning on-the-job training.

Since most screeners conduct screening

of persons, accessible property, and

checked baggage, the FAA envisions

designing one test to address all of these

types of screening. Since cargo

screening involves some unique factors

and does not involve screening persons,

the FAA would most likely develop a

separate test for cargo screeners. These

standardized tests would address the

traditional methods of screening and

equipment used to conduct screening,

such as metal detector devices, hand

wand devices, and X-ray systems. The

standardized tests might also encompass

such explosives detection devices as

explosives trace detection (ETD)

devices. For more complex explosives

detection equipment, such as explosives

detection systems (EDS), an additional

FAA knowledge-based and performance

test would be required before the

screeners could operate that equipment.

Proposed § 111.215(b) would require

that each screening company ensure

that each screener trainee completes 40

hours of on-the-job training and passes

an FAA on-the-job training test before

exercising independent judgment as a

screener. Screeners would have to

successfully pass that test before

qualified supervisory-level individuals

could sign the certification statements

in the screeners’ training and

qualification records. The FAA

envisions that this on-the-job training

test would be a computer-based test that

is similar to the image interpretation

portion of the FAA screener readiness

test, but that it might require a higher

score. The test would supplement all

realistic carrier testing required before

screeners are permitted to make

independent judgments. Applicants for

pilot certificates under part 61 and

mechanic certificates under part 65

must also pass FAA knowledge and

performance tests.

Under proposed § 111.215(c), each

screening company would be required

to ensure that each screener passes an

FAA review test at the conclusion of his

or her recurrent training. The written

tests that are currently administered at

the conclusion of recurrent training are

required by the FAA and are designed

by the carriers or screening companies;

screening companies would now be

required to provide their screeners with

FAA recurrent tests, and carriers would

be required to monitor the testing and

grading process.

The specific requirements and

guidelines for the tests proposed under

§ 111.215(a), (b), and (c) would be

outlined in the screening companies’

security programs. Using the same tests

and grading them the same way

throughout the country would ensure

that trainees all meet the same,

appropriate standards before making

independent judgments and would

promote uniformity among all screeners.

Currently, many screening companies

administer end-of-course knowledgebased tests to screener trainees in a

paper format and administer the

performance tests to trainees using

overhead slides. This increases

opportunities for cheating, because

many screener trainees receive the same

versions of the tests and because classes

as a whole are usually interpreting the

X-ray images at the same time. Instances

have occurred where trainees or

instructors have helped other trainees

answer test questions or interpret X-ray

images.

Proposed § 111.215(d) would address

this issue by requiring that each

screening company use an FAA

computer-based test to administer the

FAA tests for screener readiness, on-thejob training, and recurrent training

unless otherwise authorized by the

Administrator. This proposal would

standardize the screener testing process,

provide a unique mix of challenging and

relevant test questions for each screener,

discourage the sharing of test

information, provide X-ray images for

the X-ray interpretation portion of the

test that are more like those on an actual

X-ray machine, and automatically score

the trainees’ responses. The questions

and interpretation images would be

varied for each trainee (making it

impossible to copy from one another),

but would always address the key

subjects contained in the testing

standards. The FAA is currently

developing these automated tests based

on existing requirements for screeners.

The tests are being designed to be user

friendly and easily loaded onto standard

personal computers to minimize costs

and maximize flexibility.

Proposed § 111.215(e) would require

each screening company to ensure that

each test that it administers under

§ 111.215(a) and (c) is monitored by an

employee of the carrier for which it

screens. When the screening company

plans to administer a test to screener

trainees it would be responsible for

requesting that the applicable carrier(s)

provide a test monitor during the entire

testing and grading process. Each

applicable carrier would be responsible

for providing a test monitor upon

request and ensuring that the test

monitor meets the qualifications

contained in proposed § 108.229,

109.205, or 129.25(p) and the

supporting requirements in the

screening company’s security program.

(See section IV.I. regarding monitoring

of screener training tests and sharing of

carrier responsibilities.)

III.T. § 111.217 Training tests: cheating

and other unauthorized conduct

Proposed § 111.217 is included to

emphasize that cheating is not

permitted on any training test

580 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

administered to or taken by screening

personnel, to include test monitors,

screeners, screeners-in-charge,

checkpoint security supervisors, and

screening performance coordinators.

Under proposed § 111.217, no person

may copy or intentionally remove a

knowledge-based or performance test

under this part; give to another or

receive from another any part or copy of

that test; or give help on that test to or

receive help on that test from any

person during the period that test is

being given. In addition, no person may

take any part of that test on behalf of

another person; use any material or aid

during the period that test is being

given; or intentionally cause, assist, or

participate in any act prohibited by this

paragraph except as authorized by the

Administrator. These requirements are

similar to the testing regulations set

forth in § 61.37 for pilots. These

prohibitions apply ‘‘except as

authorized’’ by the FAA, to provide for

the possibility that in the future the

FAA would authorize such conduct as

the use of certain outside materials. For

instance, in pilot exams, the applicants

may bring flight computers to perform

required calculations.

Any instances reported to the FAA

involving allegations that screening

companies or screening company

employees are permitting cheating on

tests would be investigated, and those

companies or individuals involved in

the incidents could be held accountable.

It would be particularly important that

the test monitors explain the

consequences of cheating on tests to

their trainees and be alert to any

occurrences of cheating. If an instance

of cheating occurs, a test monitor would

be required to declare the test invalid

and inform appropriate screening

company and carrier management

officials of the incident. FAA special

agents also would regularly monitor

screening company testing.

III.U. § 111.219 Screener letter of

completion of training

Throughout this proposal, the FAA

has sought ways to more effectively

train, challenge, and motivate screeners

and their supervisors. The following

proposal would provide screeners and

supervisors with verification of their

training, and may provide a modest

means of motivation by encouraging

pride in the employees regarding their

accomplishments. Under proposed

§ 111.219, each screening company

would issue letters of completion of

training to screeners, screeners-incharge (SIC), and checkpoint security

supervisors (CSS) upon each successful

completion of approved initial,

recurrent, or specialized courses of

training. Specialized training would

encompass, for example, training for

explosives detection equipment. These

letters of completion would not serve as

certification for screeners, CSS’s, and

SIC’s, but would provide them with

records of their specific training

accomplishments. The FAA believes

that requiring screening companies to

issue letters of completion to screeners

and screener supervisors for their

successful completion of training would

help enhance the professionalism of this

critical security job.

Each letter of completion of training

would be required to contain the

trainee’s name, course of training

completed and date of completion,

name of the screening company

providing the training, and a statement

signed by a GSC, CSS, or SIC indicating

that the trainee has satisfactorily

completed each required stage of the

approved course of training and the

associated tests. Each letter of

completion would also be required to

indicate the types of screening that the

screener was trained to perform

(persons, accessible property, checked

baggage, and/or cargo) and the

equipment and methods of screening

that the screener was trained to operate

and carry out. Examples of equipment

would be X-ray systems and EDS. An

example of a method of screening would

be a manual search.

Screening companies could include

letters of completion of training as part

of their required screener and screener

supervisor training and qualification

records, but the letters would not serve

as substitutes for the remaining records

requirements.

III.V. § 111.221 Screener and

supervisor training records

Under proposed § 111.221, a

screening company would be required

to forward training records for a

screener, screener-in-charge, or

checkpoint security supervisor to

another screening company upon the

request of the employee. The other

screening company would be able to use

the employee without fully retraining

him or her if it provides training on the

procedures that differ from those of the

previous company. In the event that a

screening company ceases operations at

a site, it would also be required to

return its original screener records to

the carrier for which it was conducting

screening. These improvements would

increase mobility for screeners,

screeners-in-charge, and checkpoint

security supervisors. They would also

ensure that training documentation

would not be lost if a screening

company leaves a location. These

proposed requirements are consistent

with several comments received on the

ANPRM which stated that making

screener personnel and training files

transferable would enhance

professionalism.

Proposed § 111.221(f), in particular,

would require that training, testing, and

certification records be made available

promptly to FAA special agents upon

request and be maintained for a period

of at least 180 days following the

termination of duty for a screener,

screener-in-charge, or checkpoint

security supervisor. Test records would

include all tests to which the employee

was subjected, not just those

satisfactorily completed. Carriers

currently are required to maintain these

records under their security programs.

Including this requirement as part of

proposed part 111 would result in

transferring the responsibility to

maintain the records to screening

companies, who often already maintain

the records, and would standardize the

length of time that records have to be

maintained.

III.W. § 111.223 Automated

performance measurement and

standards

As discussed in section II.I., the FAA

is proposing to enhance the FAA’s,

carriers’, and screening companies’

abilities to measure the performance of

screening locations and to set FAA

standards for their operation. Under

proposed § 111.223(a), each screening

company would be required to use a

threat image projection (TIP) system for

each X-ray and explosives detection

system that it uses as specified in its

security program to measure the

performance of individual screeners,

screening locations, and screening

companies. It is important to note that

this requirement would not require

screening companies to install

physically the TIP systems on the X-ray

systems that they operate. Rather, it

would require screening companies to

operate the TIP systems that the carriers

have installed in accordance with the

procedures contained in their screening

company security programs. The

security program procedures would

specify usage procedures, log on/log off

procedures for each screener, and any

data collection requirements. Proper

operation of the TIP units and collection

of data would be critical to measuring

accurately the performance of screening

companies.

Under proposed § 111.223(b), each

screening company would be required

to meet the performance standards set

forth in its security program. These

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 581

performance standards would be

established through the notice and

comment procedures for amending

security programs. The FAA envisions

establishing a range of performance that

all screening companies would be

required to fall within to be considered

effective at detecting possible threats. If

a screening company falls short of the

minimum performance standards, it

may be required to carry out additional

security measures to maintain the

required level of security, depending on

the circumstances involved, and could

ultimately lose its FAA certification if

its performance does not improve (see

discussion of possible additional

security measures in section II.I.).

The FAA expects that each screening

company would regularly monitor its

overall performance as well as its

individual screeners’ performance and

take corrective actions as necessary. The

FAA also expects that each carrier that

contracts with a screening company

would regularly monitor that screening

company’s performance. These

oversight responsibilities would be

outlined in the carriers’ security

programs, and the carriers would be

responsible for working with their

screening companies to remedy any

performance problems.

The FAA would collect and analyze

screening company performance data

regularly to monitor performance and to

determine whether screening companies

and carriers are in compliance with the

required performance standards. The

FAA would also closely review data

regarding screening companies’

performance at the time of initial

certification (if historical performance

data are available) and before each

subsequent certification renewal.

The FAA proposes to require that TIP

systems be installed on X-ray and

explosives detection systems at the U.S.

screening locations specified in the

carriers’ security programs. The FAA

proposes to require that TIP systems be

installed initially at the busiest

screening locations. The specific

screening locations affected by this

requirement would be described in the

carriers’ security programs. The FAA

then would phase in requirements to

install TIP systems at the remaining U.S.

screening locations where property is

screened. The process of phasing in

requirements for TIP systems would

allow the FAA to address promptly the

higher threat airports and would allow

realistic timeframes for updating older

equipment to make it TIP-compatible.

The FAA already has installed TIP

systems at many of the Nation’s major

airports and will advocate additional

installations at other airports and cargo

facilities. During the phase-in process,

the FAA will continue to measure

screening companies’ performance

through testing and assessments.

IV. Proposed Revisions to Parts 108,

109, and 129

The following section discusses the

detailed rule proposals for parts 108,

109, and 129. The proposed additions

for part 109 have been organized in a

new regulatory format similar to that of

Notice No. 97–12 for part 108, for clarity

and consistency.

IV.A. §§ 108.201(h); 109.203(a); and

129.25(k) Certification requirement

Proposed new § 108.201(h) would

require that each carrier required to

conduct screening of persons and

property under a security program hold

a screening company certificate issued

under part 111 if the carrier will

conduct the screening or use another

screening company certificated under

part 111 to conduct such screening.

Proposed new § 109.203(a) would

require that each indirect air carrier that

elects to conduct screening of property

under a security program hold a

screening company certificate issued

under part 111 or use another screening

company certificated under part 111 to

conduct such screening.

Proposed § 129.25(k) would require

that each foreign air carrier required to

conduct screening of persons and

property under a security program

either hold a screening company

certificate issued under part 111 or use

a screening company certificated under

that part for screening locations within

the United States.

Proposed § 108.201(h), 109.203(a),

and 129.25(k) would all state that FAAcertified canine teams are not required

to be operated by certificated screening

companies. This statement is included

to provide clarification for situations

where FAA-certified canine teams are

used to conduct screening.

IV.B. §§ 108.5 and 109.5 Inspection

authority

Proposed § 108.5, Inspection

authority, would be amended to require

that each air carrier also allow the

Administrator, including FAA special

agents, to make any inspections or tests

at any time or place to determine

screening company compliance with the

new part 111 of this chapter and the

carrier’s screening company security

program(s). Proposed § 108.5 also would

be amended to require that an air carrier

provide evidence of compliance with

the new part 111 of this chapter and its

screening company security program(s)

at the request of the Administrator.

Similar inspection authority language

would also be proposed as § 109.5 to be

consistent with the requirements in

§§ 108.5 and 119.59. This proposed

parallel section would not be a new

requirement, because it is already

required by statute. Rather, the

proposed section is intended to resolve

any confusion regarding the FAA’s

statutory authority to conduct

inspections and tests under title 49,

U.S.C., Subtitle VII.

IV.C. §§ 108.103(b); 109.103(b); and

129.25(c) Security program form,

content, and availability

Proposed § 108.103 in Notice No. 97–

12 sets forth the form, content, and

availability of security programs

required under part 108. Proposed

§ 108.103(b) of Notice No. 97–12 lists

items to be included in the security

programs. The proposed rule in this

notice would add to that list of items in

Notice No. 97–12 two new items: a

description of how an air carrier would

provide oversight to each screening

company performing screening on its

behalf, and a description of how the air

carrier would evaluate and test the

performance of screening. The proposed

rule would also add comparable

requirements as proposed

§§ 109.103(b)(4) and (5) and 129.25(c)(5)

and (6). These requirements also would

apply to indirect air carriers that elect

to perform the screening functions

themselves.

The proposed requirement regarding a

description of carrier oversight is based

on proposed §§ 108.201(j), 109.201(c),

and 129.25(m), which would require

that each carrier required to conduct

screening under parts 108, 109, and 129

provide oversight to each screening

company performing screening on

behalf of the carrier. The specific

oversight requirements would be

included in the carrier’s security

programs.

The proposed requirement regarding a

description of testing and evaluation

procedures would include the process

that the carrier would use to collect and

evaluate automated screener and

screening company performance data on

a regular basis as required in proposed

§ 111.223. Requiring the air carriers,

indirect air carriers, and foreign air

carriers to provide these descriptions

would help to ensure that the carriers

adequately oversee and manage the

performance of screening companies

employed by them.

In addition to adding the new

requirements above to part 109, the

proposal would rename the current

§ 109.3 as § 109.103 and reorganize it to

parallel § 108.103. Proposed

582 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

§ 109.103(a) would state several overall

requirements for the indirect air carrier

security program. All of the

requirements are stated in the current

§ 109.3 with the exception of one new

requirement. This proposed addition

would require indirect air carriers to

state in their programs that upon receipt

of an approved security program or

security program amendment from the

FAA, the indirect air carriers shall

acknowledge receipt of it to the

Assistant Administrator in writing and

signed by the indirect air carriers or

persons delegated authority in this

matter within 72 hours. This is a

proposed requirement in § 108.103 and

would also be applicable to indirect air

carriers.

Section 109.103(b) would list all of

the items that the indirect air carrier

security programs shall include. In

addition to adding the two description

requirements to § 109.103(b), the

proposal would also require that the

security programs include the following:

the procedures and descriptions of the

facilities and equipment used to

perform screening functions specified in

§ 109.201; and the procedures and

descriptions of the equipment used to

comply with the requirements of

§ 109.207 of this part regarding the use

of X-ray systems should indirect air

carriers elect to perform screening

functions. These requirements would be

added to support the new cargo

screening requirements, with an

emphasis on X-ray systems.

Section 109.103(c) would describe

how the indirect air carriers should

maintain their programs and to whom

they should make security program

information available. All of these

requirements already are required by the

current § 109.3.

IV.D. §§ 109.105 and 129.25(e)

Approvals and amendments of security

programs

The proposal would reorganize the

current regulatory text of §§ 109.5

(proposed § 109.105) and 129.25(e)(2),

(3), and (4) to clarify the requirements

and make them consistent with the

organization of § 108.105. The only

substantive changes would affect

indirect air carriers under proposed

§ 109.105(c) and (d). Section 109.105(c)

would allow indirect air carriers to

petition the Administrator to reconsider

a notice of amendment if the petitions

are submitted no later than 15 days

before the effective date of the

amendment. Section 109.105(d) would

allow indirect air carriers the

opportunity to file petitions for

reconsideration under § 109.105(c).

IV.E. §§ 108.201(i), (j), and (k);

109.203(b), (c), and (d); and 129.25(l),

(m), and (n) Responsibilities of carriers

and screening companies

Proposed new §§ 108.201(i),

109.203(b), and 129.25(l) would require

each carrier to ensure that each

screening company performing

screening services on the carrier’s behalf

do so consistent with part 111, the

screening company’s security program,

and the screening company’s operations

specifications. Proposed new

§§ 108.201(j), 109.203(c) and 129.25(m)

would require each carrier required to

conduct screening to oversee each

screening company performing

screening on its behalf as directed in the

carrier’s security program. The

requirements for oversight would all be

listed in the ACSSP, MSP, and IACSSP.

For example, the security programs may

require periodic audits by the carriers to

look at different aspects of the screening

companies’ operations. The frequency of

such audits and the specific aspects to

be audited would be described in the

security programs and could be tailored

to the different types of screening

operations conducted. The FAA

recently issued an amendment to the

ACSSP that meets the intent of this

proposal for air carriers. The proposed

amendment strengthens checkpoint

auditing and testing requirements for

ground security coordinators.

As part of their oversight

responsibilities, each carrier required to

conduct screening under a security

program would be required under

proposed §§ 108.201(k), 109.203(d), and

129.25(n) to maintain at least one

complete copy of each of its screening

companies’ security programs at its

principal business office; have available

complete copies or the pertinent

portions of its screening companies’

security programs or appropriate

implementing instructions at each

location where the screening companies

conduct screening for the carrier; and

make copies of its screening companies’

security programs available for

inspection by an FAA special agent

upon request. Each carrier would also

be required to restrict the distribution,

disclosure, and availability of

information contained in its screening

companies’ security programs to

persons with a need to know as

described in part 191 of this chapter,

and refer requests for such information

by other persons to the Administrator.

These proposed requirements are

consistent with several comments on

the ANPRM that stated that air carriers

must ensure that the screening

companies are conducting screening on

their behalf in compliance with the

applicable security programs and all

other regulations. Some commenters

also stated that while air carriers should

retain responsibility for checkpoint

screening activities, certificated

screening companies should be directly

responsible for their own regulatory

compliance.

IV.F. §§ 108.201(l) and 129.25(o)

Public notification regarding additional

security measures

As discussed in section III.W., the

FAA envisions that performance

standards eventually may be established

using TIP data. If a screening company

were to fall short of the minimum

standards it may be required to carry out

additional measures to maintain the

required level of security. These

measures may result in slowing the

screening operation at that location.

Proposed §§ 108.201(l) and 129.25(o)

would be added to require that each

carrier required by the FAA to

implement additional security measures

to maintain system performance notify

the public by posting signs at affected

locations as specified in its security

program. This would explain to the

public why it might take longer than

usual for screening to be accomplished

and why baggage may be subjected to

additional searches. This is further

discussed in section II.I.

IV.G. §§ 108.205; 109.207; and 129.26

Use of X-ray systems

Proposed § 108.205 would be

amended to require that air carriers use

X-ray systems in accordance with their

approved security programs and their

screening companies’ approved security

programs. Both programs are included

here, because the air carriers would be

required to ensure that the X-ray

systems meet the standards for cabinet

X-ray systems issued by the Food and

Drug Administration (FDA), have had

radiation surveys as required, have met

the required imaging requirements at

the time of initial installation and when

the systems are relocated, are in full

compliance with any defect notices or

modifications orders issued for those

systems by the FDA, and meet other

equipment-related requirements as

described in proposed § 108.205.

However, an air carrier would also be

responsible for ensuring that its

screening companies comply with the

X-ray-related requirements to be

relocated to the Screening Standard

Security Program. Specifically,

§ 108.205(a)(2), which requires that a

program for initial and recurrent

training of operators of X-ray systems be

established, would be relocated to

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 583

§ 111.203. Screening companies would

assume responsibility for training their

employees under this proposed rule.

Section 108.205(a)(3) would then be

renumbered to read (a)(2) and would be

revised to indicate that the screening

companies’ security programs would

contain the imaging requirements. Also,

§ 108.205(h), which would require each

air carrier to comply with X-ray operator

duty time limitations, would be

relocated to § 111.203.

A new paragraph (h) would be added

to state that unless otherwise authorized

by the Administrator, each air carrier

shall ensure that each X-ray system that

it uses have a functioning threat image

projection (TIP) system that meets the

standards set forth in its security

program. The FAA has worked with

some X-ray system vendors to develop

TIP systems and acceptable TIP

standards and will continue to do so;

these TIP systems currently are being

used in several U.S. airports.

The FAA, carriers, and screening

companies would use the data gathered

from the TIP systems to measure

performance of the screening location

and screeners, as described in section

II.I. It therefore is necessary that the TIP

systems be functioning properly and

that the carriers use them as specified in

their screening companies’ security

programs at all times unless they obtain

amendments from the Administrator.

Such amendments could be approved

by the FAA for a limited time period if,

for example, there were not enough Xray systems with functioning TIP

systems available for necessary

screening operations at particular

screening locations.

Paragraph (h)(1) would state that

automated X-ray TIP data will be

collected as specified in the air carriers’

security programs and in the

responsible screening companies’

security programs. Paragraph (h)(2)

would state that air carriers shall make

X-ray TIP data available to the FAA

upon request and shall allow the FAA

to download TIP data upon request.

Section 129.26 would contain

proposed amendments similar to those

described previously for § 108.205.

Section 129.26(a)(3), which requires that

a program for initial and recurrent

training of operators of X-ray systems be

established, would be relocated to

§ 111.203. Screening companies would

assume responsibility for training their

employees under this proposed rule.

Section 129.26(a)(5) would then be

renumbered to read (a)(3) and would be

amended to indicate that the imaging

requirements for X-ray systems will now

be set forth in the approved Screening

Standard Security Program rather than

in the foreign air carriers’ security

programs.

Currently, § 129.26(a)(4) requires

foreign air carriers using X-ray systems

to establish procedures to ensure that all

operators of the systems be provided

with individual personal dosimeters to

measure exposure to X-rays and that

they evaluate them every month. The

FAA is proposing to omit this

requirement, as was also proposed in

Notice No. 97–12 for part 108. In 1975,

the FAA first adopted rules regarding

the use of X-ray machines to screen

accessible property. At that time, the

use of X-ray systems for this purpose

was relatively new, and the FAA took a

number of steps to evaluate the safety

and environmental impacts of these

systems. Although the experts who

submitted comments did not find it

necessary for operators of the equipment

to wear dosimeters, the FAA’s rules

included such a requirement. The FAA

now proposes to remove this

requirement based on the

determinations of those agencies with

the expertise.

The FAA proposes to add a new

paragraph as § 129.26(a)(4) that would

parallel the proposed new paragraph (h)

in § 108.205. Paragraph (a)(4) would

state that unless otherwise authorized

by the Administrator, each foreign air

carrier shall ensure that each X-ray

system that it uses has a functioning

threat image projection system that

meets the standards set forth in its

security program. The FAA, carriers,

and screening companies would use the

data gathered from the TIP systems to

measure performance of the screening

location and screeners, as described in

section II.I. Paragraph (a)(4)(i) would

state that automated X-ray TIP data will

be collected as specified in the SSSP

and the MSP. Paragraph (a)(4)(ii) would

state that foreign air carriers shall make

X-ray TIP data available to the FAA

upon request and shall allow the FAA

to download their TIP data upon

request.

Proposed § 109.207 would be added

to provide regulations on the use of Xray systems consistent with the

requirements of proposed § 108.205 and

§ 129.26. These requirements are a

slightly edited version of rule language

in proposed § 108.205, with minor

differences related to the unique nature

of screening cargo.

IV.H. §§ 108.207 and 129.28 Use of

Explosives Detection Systems

Because most screening-related

procedures would be moved to the

Screening Standard Security Program,

proposed § 108.207 would be reworded

to state the following: When the

Administrator shall require by an

amendment under § 108.105 of this part,

each air carrier required to conduct

screening under a security program

shall use an explosives detection system

that has been approved by the

Administrator to screen checked

baggage on each international flight in

accordance with the air carrier’s and its

screening company security programs.

This proposal would designate this

revised paragraph as paragraph (a), and

create a paragraph (b) to state that

unless otherwise authorized by the

Administrator, each air carrier shall

ensure that each explosives detection

system that it uses has a functioning TIP

system that meets the standards set forth

in its security program. The FAA is

working with explosives detection

system vendors to develop TIP systems

and to establish acceptable standards

similar to those being developed for Xray systems. The FAA would use the

data gathered from the TIP systems to

measure performance of screening

locations and screeners, as described in

section II.I. Paragraph (b)(1) would state

that automated explosives detection

system TIP data will be collected as

specified in the air carriers’ and

screening companies’ security programs.

Paragraph (b)(2) would state that air

carriers shall make explosives detection

system TIP data available to the FAA

upon request and shall allow the FAA

to download their TIP data upon

request.

A new § 129.28 would also be added

to part 129 to extend the TIP

requirements for explosives detection

systems to foreign air carriers. The

language in this proposed addition

would be similar to the proposed

revised language for § 108.207 but

would require foreign air carriers to

comply with their security programs

and their screening companies’ security

programs.

IV.I. §§ 108.229, 109.205, and 129.25(p)

Monitoring of Screener Training Tests

Proposed new §§ 108.229, 109.205,

and 129.25(p) would require that each

carrier monitor each screener training

test required under § 111.215(a) and (c)

for all screening companies that conduct

screening on its behalf in accordance

with its security program. As discussed

in section II.H., this proposed

requirement is intended to increase

carrier involvement with the training

and testing processes and to help deter

possible cheating. It is one of many

proposals in this NPRM intended to

emphasize how critical it is that

screeners individually demonstrate a

fundamental knowledge of screeningrelated information and that they meet

584 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

the standards that are needed for them

to perform their screening

responsibilities effectively and without

inappropriate assistance.

The FAA does not intend to impose

unrealistic burdens on carriers with this

requirement. In a situation where

multiple carriers contract with one

screening company, one carrier could be

designated to monitor the screener tests,

or the responsibility could be rotated

among all of the responsible carriers.

The FAA is not proposing to require

that carriers monitor the tests under

proposed § 111.215(b) because of the

logistical difficulties involved with

screeners’ completing their 40 hours of

on-the-job training at varied times. In

this way, screening companies would

have added flexibility in administering

these automated on-the-job training tests

to their screening personnel.

Each test monitor would be required

to meet specific qualifications, which

are listed in the three proposed carrier

sections. A test monitor would have to

be an employee of a carrier who is not

a contractor, instructor, screener,

screener-in-charge, checkpoint security

supervisor, or other screening company

supervisor. However, if the carrier is

unable to provide a test monitor who

meets these requirements, it could seek

an amendment from the FAA allowing

it to use one or more test monitors who

do not meet the qualifications

requirements. Requiring that monitors

be employees of the carriers would

prevent carriers from designating

contracted screening company

employees as test monitors, resulting in

increased carrier involvement with

monitors who are independent from the

screening companies. Carriers could

designate any qualified carrier

employees as test monitors, including

ground security coordinators. In

addition to the qualifications

requirement, test monitors would be

required to be familiar with the testing

and grading procedures contained in

their screening companies’ security

programs and would be required to

monitor the procedures as specified in

the security programs.

IV.J. Additional Proposed Requirements

to Parts 108, 109, and 129

Proposed § 109.1, ‘‘Applicability,’’

would revise current § 109.1 to clarify

and simplify the applicability for the

part. The proposal would state that

§ 109.1 prescribes aviation security rules

governing each indirect air carrier (IAC)

engaged indirectly in the air

transportation of property.

Proposed § 109.3, ‘‘Definitions,’’

would define the term ‘‘indirect air

carrier’’ to clarify its meaning for the

purpose of part 109.

Proposed § 109.7, ‘‘Falsification,’’

would be a new section in part 109.

This section would be added to be

consistent with the falsification

requirements in proposed § 108.7.

Proposed § 109.101, ‘‘Adoption and

implementation,’’ would be created to

emphasize the requirement for each

indirect air carrier to adopt and carry

out a security program that meets the

requirements of § 109.103. Creating this

separate section would also make the

statement of this requirement consistent

with the ‘‘Adoption and

implementation’’ section in § 108.101.

Proposed § 109.201, ‘‘Screening of

Cargo,’’ would be added to clarify under

paragraph (a) that each indirect air

carrier that elects to conduct screening

under a security program shall use the

procedures included and the facilities

and equipment described in its

approved security program and its

screening company approved security

program(s) to inspect cargo and prevent

the carriage of explosives or

incendiaries onboard any aircraft.

Proposed § 109.201(b) would be added

to clarify that each indirect air carrier

that elects to conduct screening under a

security program shall detect and

prevent the carriage of explosives or

incendiaries aboard aircraft and into

sterile areas in cargo. This section

would be added to be consistent with

the applicable requirements in the

‘‘Screening of persons and property and

acceptance of cargo’’ section in

proposed § 108.201.

Proposed § 108.201(m) would be

added under ‘‘Screening of persons and

property and acceptance of cargo’’ to

clarify that although all screeningrelated requirements for screening in the

United States have been relocated to

part 111, certain requirements still

apply at screening locations outside the

United States at which air carriers have

operational control over screening.

Specifically, proposed § 108.201(m)

would state that air carriers that do have

operational control over screening

outside the United States shall carry out

and comply with all relevant sections of

part 111 of this chapter, except for those

requirements related to screening

company certification, to the extent

allowable by local law. An air carrier

would be permitted to use screeners

who do not meet the requirements of

§ 111.205(a)(3) provided that at least one

representative of the air carrier who has

the ability to read and speak English

functionally is present while the air

carrier’s passengers are undergoing

security screening. In the event that an

air carrier is unable to implement any of

the requirements for screening, the air

carrier would be required to notify the

Administrator of those air carrier

stations or screening locations so

affected. Most of proposed § 108.201(m)

consists of requirements contained in

§ 108.209(e) and (f) of proposed Notice

No. 97–12. Proposed § 108.201(n) would

be added to require that air carriers

notify the Administrator of any

screening locations outside the United

States at which they do have operational

control. To the FAA’s knowledge, there

are currently no foreign locations where

part 108 air carriers have operational

control over screening; however, this

proposal includes these requirements in

the event of such a situation.

Proposed § 108.203, ‘‘Use of metal

detection devices,’’ would be revised to

state that no air carrier may use a metal

detection device contrary to its

approved security program or its

screening company approved

program(s). The section would also be

revised to require that metal detection

devices meet the calibration standards

established by the Administrator in the

screening company approved security

program(s).

Proposed § 108.227(b) would be

amended to also require that each air

carrier ensure that individuals

performing security-related functions on

its behalf have knowledge of their

screening company approved security

program(s) to the extent that such

individuals need to know in order to

perform their duties.

Proposed § 108.301(b)(1) would be

amended to require that the ground

security coordinator (GSC) at each

airport also conduct a review of all

security-related functions for

effectiveness and compliance with its

screening company security program(s).

Proposed § 108.301(b)(2) would be

amended to require that the GSC at each

airport also immediately initiate

corrective action with its applicable

screening company for each instance of

noncompliance with the screening

company’s security program.

Proposed § 129.25(j) would revise

current (j) to more clearly break out and

include the operations requirements

consistent with § 108.201.

V. Proposed Revisions to Part 191

V.A. Protection of Sensitive Security

Information (SSI)

The carriers’ security programs are

not available to the public because the

information that they contain would be

helpful to individuals who might intend

to attack civil aviation. Part 191 of Title

14, Code of Federal Regulations,

contains rules to protect security

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 585

programs and other sensitive security

information (SSI) from disclosure to

unauthorized persons. For example,

under § 191.5, a carrier and each

individual employed by, contracted to,

or acting for that carrier are required to

restrict disclosure of and access to SSI

to persons with a need to know.

V.B. § 191.1 Applicability and

Definitions

Part 191.1(c) indicates that for matters

involving the release or withholding of

information and records containing

information described in § 191.7 (a)

through (g) and related documents

described in (l), the authority of the

Administrator may be further delegated.

The FAA proposes to add § 191.7(m) to

this list.

V.C. § 191.5 Records and Information

Protected by Others

Currently, screeners are required to

protect SSI because they are employed

by, contracted to, or acting for carriers.

This would remain true under the

screening company certification rules

proposed in this notice. However, to

emphasize the need for screening

companies and their employees to

protect SSI, the FAA proposes to add to

§ 191.5 the requirement that screening

companies also shall restrict access to

SSI.

As discussed previously, the FAA

anticipates that in the course of

applying for and qualifying for a

screening company certificate, an

applicant would receive the Screening

Standard Security Program. To ensure

that applicants for certificates are under

the same requirements to protect SSI as

are persons who hold certificates, the

FAA proposes to add § 191.5(e).

Proposed § 191.5(e) provides that

references in part 191 to an air carrier,

airport operator, indirect air carrier,

foreign air carrier, or certificated

screening company include applicants.

Thus, an applicant for a screening

company certificate would be required

to restrict disclosure of the security

program information that it receives.

The same would be true of an applicant

for an air carrier certificate who also is

seeking an approved security program.

The amount of SSI that carrier

applicants now receive is very limited,

and there usually is very little time

between when they might receive

standard security program information

and when they might become

certificated. However, they should

protect the security program

information from unauthorized

disclosure.

In some parts of the industry,

individuals may be placed in training

for positions, such as a screener

position, before they are on the

companies’ payrolls. The training may

include SSI. If a person completes

training, he or she is hired. There has

been some misunderstanding as to

whether such trainees are covered by

part 191. The FAA does consider them

to be covered and proposes to add

§ 191.5(f) to make this clear. Such

trainees meet one or more of the criteria

of employed by, contracted to, or acting

for a carrier, airport operator, or

screening company.

V.D. § 191.7 Description of SSI

Section 191.7 defines what

information and records are SSI and

therefore are subject to the protections

in § 191.5. Under this proposal, § 191.7

would be amended to treat screening

companies the same as carriers and to

emphasize the need for them to protect

sensitive security information. Section

191.7(a) describes various security

programs that are protected. It would be

amended to include screening company

security programs.

Section 191.7(h) describes the

information that the Administrator has

determined may reveal systemic

vulnerabilities of the aviation system or

vulnerabilities of aviation facilities to

attack. It would be amended to include

alleged violations and findings of

violations of part 111 and any

information that could lead to the

disclosure of security information or

data developed during FAA evaluations

of certificated screening companies. For

events that occurred less than 12

months before the date of the release of

the information, § 191.7(h) would be

amended to allow the FAA to release

summaries of certificated screening

companies’ total security violations in

specified time ranges without

identifying specific violations. For

events that occurred 12 months or more

before the date of the release of the

information, § 191.7(h) would be

amended to allow the FAA to release

the names of certificated screening

companies cited in the alleged

violations.

A new § 191.7(m) would be added to

cover the operations specifications of

screening companies. Specific portions

of the operations specifications would

be considered SSI and would be

protected from disclosure to

unauthorized persons. Some parts of the

operations specifications, however,

would be considered not to be SSI and

would not be protected under part 191.

These nonprotected items include the

name of the company, the locations at

which the Administrator has authorized

the company to conduct business, the

type of screening that the Administrator

has authorized the company to perform,

and the title and name of the person

required by proposed § 111.209(b).

A new § 191.7(n) would be added to

cover the screener tests that the FAA

will develop and require under

proposed § 111.215. These tests will

contain information that is in the

security programs and must be

protected in the same way.

VI. Paperwork Reduction Act

This proposal would create a new part

111 within Title 14, Code of Federal

Regulations, titled ‘‘Certification of

Screening Companies.’’ It would also

result in conforming amendments to 14

CFR parts 108, 109, 129, and 191. This

proposal contains information

collections that the FAA has submitted

to the Office of Management and Budget

(OMB) as required by the Paperwork

Reduction Act of 1995 (44 U.S.C.

section 3507(d)).

Title: Certification of Screening

Companies.

The following proposed sections

include new information collection

requirements: § § 108.103(b)(14) and

(15), 108.201(j), and (k), 108.205,

108.207, 108.229, 109.103(b)(4) and (5),

109.105, 109.203(b) and (c), 109.205,

109.207(e), (f), and (h), 111.105–

111.109, 111.113–111.119, 111.205,

111.209, 111.215, 111.219, 111.221,

129.25(c)(5) and (6), (l), (m), and (o),

129.26(a)(4), and 129.28.

The FAA proposes to require that all

companies that perform aviation

security screening be certificated by the

FAA and meet enhanced requirements.

The FAA also proposes specific

requirements that are intended to

improve the screening of passengers,

accessible property, checked baggage,

and cargo and proposes to provide

standards for consistent high

performance and increased

accountability of screening companies.

The proposal is in response to a

recommendation by the White House

Commission on Aviation Safety and

Security and to a Congressional

mandate in Section 302 of the Federal

Aviation Reauthorization Act of 1996.

The FAA would collect several types

of information from screening

companies. The FAA would collect and

analyze information during the

application process before issuing

certificates to screening companies. This

would be the most significant collection

of information involved but would ccur

only initially for provisional screening

company certificates, after

approximately 1 year for ‘‘standard’’

certificates, and once every 5 years

thereafter. In addition, the FAA would

586 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

require that screening companies notify

the FAA and provide information as

applicable when adopting their security

programs and when proposing to amend

their security programs, operations

specifications, or screening company

certificates. During periodic assessments

of screening company operations, the

screening companies would be required

to provide any information requested to

the FAA. The FAA would use this

information to ensure that the screening

companies and carriers are complying

with screening requirements.

Next, the FAA would collect

information from air carriers, foreign air

carriers, and indirect air carriers. These

carriers would be required to show

evidence of compliance with specified

regulations and programs. This includes

a proposed requirement that carriers

maintain copies of their screening

companies’ security programs at their

principal business offices and at their

screening locations, and be able to

obtain copies of these programs to show

the FAA upon request. Carriers would

be required to include in their security

programs descriptions of the systems

that they would use to evaluate and test

the performance of all screening that

they conduct. This requirement would

ensure that all carriers plan how they

would remain actively involved in

evaluating and testing their screening

operations and then carry out those

security program provisions. The FAA

would review each security program to

ensure that the systems descriptions

provide for effective oversight and

would evaluate the carriers periodically

to ensure that they are complying with

their security programs. Each carrier

would also be required to collect threat

image projection data as specified in its

carrier security program and in its

responsible screening company security

programs and make the data available to

the FAA if requested.

In addition to the FAA collecting

information, carriers would also collect

information from screening companies.

First, when the FAA issues an

enforcement action to a screening

company, that company would be

required to provide a copy of the

enforcement action to the carrier(s) for

which it is providing screening. The

carriers would use the information that

they collect regarding enforcement

actions to monitor the effectiveness of

the screening operations being

conducted on their behalf. This would

be a third party disclosure. Second,

carriers would also receive copies of

their screening companies’ certificates,

operations specifications, and security

programs as well as all of their

screening companies’ proposed changes

to any of this documentation. A

screening company would be required

to submit with its amendment request a

statement that all carriers for which it

screens have been advised of the

proposed amendment and have no

objection to it. The Administrator would

review this application and determine

whether or not to approve the proposed

amendment. Third, upon termination of

screening services at a site, a screening

company would be required to

surrender all its records of individual

screeners to the carrier(s) for which it

conducts screening. The carrier(s)

would use this information from the

screening company as needed for future

contracts.

Air carriers and foreign air carriers

also would be required under this

proposal to notify the public by posting

signs at screening locations as specified

in their security programs when they are

required by the FAA to implement

additional security measures to

maintain system performance. This

would be a third-party disclosure.

Indirect air carriers, in particular, would

be required under this proposal to post

signs or provide written notifications to

their customers to caution them that

certain X-ray systems being used may

damage specified types of film

contained in their property. Indirect air

carriers also would be required under

this proposal to maintain copies of the

results of their most recent radiation

surveys conducted at their principal

business offices and the places where

the X-ray systems are in operation and

would be required to make the surveys

available for FAA inspection upon

request.

Screening companies would also be

required to collect and retain

information under this proposed rule.

Screening companies would be required

to collect copies of applicable

regulations as specified in the proposed

rule and maintain records regarding the

requirements in the rule. Such records

would include copies of their

certificates, operations specifications,

security programs, and training records.

Screening companies would be required

to ensure that the steps in current

§ 108.33(c)(1–4) have been completed

before providing sensitive security

information to screener trainees.

Screening companies would be required

to annotate screeners’ training records

when screeners complete or terminate

their training or transfer to other

companies. Screening companies would

on occasion collect brief permission

statements from screeners that would

require them to release screener training

and performance records to other

screening companies or to the screeners

directly upon the screeners’ request.

These would be third-party disclosures.

Screening companies would also be

required under this proposal to issue

letters of completion of training to all

screeners, screeners-in-charge, and

checkpoint security supervisors upon

their successful completion of approved

initial, recurrent, and specialized

courses of training.

It is estimated that this proposal

would affect 640 screening companies

and carriers annually. This estimate

consists of 66 screening companies, 150

air carriers, 145 foreign air carriers, and

264 indirect air carriers. This estimate

also takes into account the FAA’s

assumption that approximately 15 of the

air carriers would apply for and receive

screening company certificates in order

to screen cargo and thus counts these 15

air carriers twice—once, which takes

into account the costs they would

accrue as air carriers and once more,

which takes into account the costs they

would accrue as screening companies.

The estimated annual reporting and

recordkeeping burden hours are

estimated to be 173,577 hours.

Individuals and organizations may

submit comments regarding the

information collection requirements.

The comments must be received on or

before April 4, 2000 and must be

submitted to the address for comments

listed in the ADDRESSES section of this

document. These comments should

reflect whether the proposed collection

is necessary; whether the agency’s

estimate of the burden is accurate; how

the equality, utility, and clarity of the

information to be collected can be

enhanced; and how the burden of the

collection can be minimized.

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. When OMB assigns a

control number, a notification of that

number will be published in the Federal

Register.

VII. Compatibility With ICAO

Standards

In keeping with U.S. obligations

under the Convention on International

Civil Aviation, it is FAA policy to

comply with International Civil

Aviation Organization (ICAO) Standards

and Recommended Practices to the

maximum extent practicable. This

proposal is consistent with the ICAO

security standards. The ICAO standards

do not differentiate security

requirements by aircraft seating

capacity, and they require the screening

of passengers for all international

flights. The FAA is not aware of any

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 587

differences that this proposal would

present if adopted. Any differences that

may be presented in comments to this

proposal, however, will be taken into

consideration.

VIII. Regulatory Analyses

VIII.A. Regulatory Evaluation Summary

This proposed rule is considered

significant under the regulatory policies

and procedures of the Department of

Transportation (44 FR 11034; February

26, 1979) but does not reach the

threshold for an ‘‘economically

significant’’ action (i.e., annual costs

greater than $100 million).

Proposed and final rule changes to

Federal regulations must undergo

several economic analyses. First,

Executive Order 12866 directs that each

Federal agency 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, as amended March 1996,

requires agencies to analyze the

economic effects of regulatory changes

on small entities. Third, the Office of

Management and Budget directs

agencies to assess the effects of

regulatory changes on international

trade. In conducting these analyses, the

FAA has determined that the proposed

rule would generate benefits that justify

its costs. Although the FAA was unable

to determine if the proposed rule would

have a significant impact on a

substantial number of small entities and

given the complexity of the issues, the

FAA conducted a regulatory flexibility

analysis. The proposed rule would not

constitute a barrier to international trade

and does not contain Federal

intergovernmental or private sector

mandates. The full analyses performed

in response to the above requirements

are contained in the docket and are

summarized below.

The FAA has analyzed the expected

costs of this regulatory proposal for a

10-year period, from 2000 through 2009.

As required by the Office of

Management and Budget (OMB), the

present value of this cost stream was

calculated using a discount factor of 7

percent. All costs in this analysis are

expressed in 1997 dollars.

Companies that have traditionally

been providing passenger screening for

air carriers would be covered by these

proposed regulations. Some direct air

carriers do their own passenger

screening and/or provide screening for

other direct air carriers; in the context

of passenger screening, these carriers

will be referred to as screening

companies. There currently are 66

screening companies performing

screening for part 108 and part 129 air

carriers. The FAA estimates that in

2000, there would be approximately

19,600 screeners and screener

supervisors, working for these screening

companies who would be affected by

this proposed rule. The FAA estimates

that there would be an additional 3

screening companies that would be

covered by these regulations each year

starting in 2001.

This proposed rule also would affect

the 150 U.S. air carrier operators

certificated under part 108 providing

scheduled and other domestic and

international passenger service in the

United States as well as the 2,634 U.S.

indirect air carriers certificated under

part 109 and 145 foreign air carriers

certificated under part 129. The FAA

assumes that the number of direct,

indirect, and foreign air carriers would

remain constant for each year of the

analysis.

The FAA assumes that 10 percent of

the direct and indirect air carriers that

currently transport cargo would elect to

screen this cargo. The FAA assumes that

these carriers would choose to do their

own screening, with time being a very

expensive commodity, for it would be

cost beneficial for them to do so rather

than depend on other screening

companies to perform the services. Air

carriers that screen cargo would need to

comply with the provisions that regulate

screening companies; this compliance

would generate new costs.

Some of the sections of the proposed

part 111 make references to parts 108

and 109, and this analysis also examines

potential changes to parts 108 and 109.

The numbering system for part 108 of

this NPRM is based on the numbering

system of a recently published NPRM;

on August 1, 1997, the FAA published

Notice No. 97–12, which proposes to

revise 14 CFR part 108 to update the

overall regulatory structure for air

carrier security (62 FR 41730). This

notice proposes to amend the proposed

rule language of part 108 in Notice No.

97–12 rather than the current part 108.

The numbering systems for revised part

109 (and proposed part 111) also are

closely aligned with the Notice No. 97–

12 numbering system for clarity and

consistency. If the text refers to a

proposed section in part 108 that is

simply a renumbered section (based on

Notice No. 97–12), the current section

number will be placed in parentheses.

Many of the proposals for part 111 are

either definitional or discuss

requirements in other sections. In

addition, many of the proposed changes

to parts 108, 109, and 129 simply

change definitions or make minor word

changes. These changes would not

result in any incremental costs and will

not be covered in this summary.

Twenty-one proposed sections would

result in costs and these are covered

below.

Proposed § 111.5 would require all

companies performing screening to

allow FAA inspection to determine

compliance with these proposals. The

screening company must also allow for

FAA inspections and tests of equipment

as well as procedures at screening

locations that relate to the carrier’s

compliance with their regulations. The

FAA estimates that it would need 12

additional inspectors, 3 based at FAA

headquarters and 1 each stationed at the

9 FAA regions. The additional

personnel would process all the

paperwork involved with issuing the

certificates, writing and approving the

Standard Security Screening Program

(SSSP), and approving operations

specifications as well as processing any

changes and amendments and analyzing

performance data. Ten-year costs sum to

$10.10 million (net present value, $7.10

million).

Proposed § 111.105 would provide

specific requirements for each screening

company’s SSSP. The FAA would write

the basic SSSP document and provide

copies of the document to the screening

companies. After the SSSP is finalized,

each screening company would be

required to maintain at least 1 complete

copy of the SSSP at its principal

business office, at each airport that it

serves, and each carrier that it screens

for. The 10-year costs for this proposed

section sum to $65,600 (net present

value, $50,400).

Proposed § 111.107 describes the

procedures for seeking SSSP approvals

and making future amendments. A

screening company would review the

basic SSSP document obtained from the

FAA, and then could choose to adopt

the SSSP as is or adopt the SSSP after

making amendments to it. Either the

company providing screening services

or the FAA could initiate amendments

to the SSSP after its initial makeup has

been agreed upon. The FAA assumes,

for the purpose of this analysis, that

amendments to the SSSP would occur 3

times a year on average. Each company

would then need to brief its employees

on these changes. In addition, both

screening companies and the FAA

would be required to make sure that all

carriers using those screening

companies are aware of and concur with

all SSSP changes. Total 10-year costs for

§ 111.107 sum to $48.13 million (net

present value, $33.27 million).

Proposed § 111.109 would require all

screening companies to have

588 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

certificates. All companies would apply

initially for provisional certificates that

would be good for 1 year. Existing

companies would be permitted to

continue their screening activities

uninterrupted while their applications

are considered. Both existing and new

screening companies would then have

to apply for standard certificates, which

would be effective for 5 years. The FAA

would inspect screening companies

regularly and would monitor operations

and tests continually to determine that

each screening company is in

compliance with the regulations. Once a

certificate is obtained, a screening

company would need to apply to the

FAA for an amendment to change any

of the information on the certificate; the

FAA assumes that a certificate would be

amended once every other year on

average. Total 10-year costs sum to

$133,000 (net present value, $96,400).

Proposed § 111.113 would stipulate

what each screening company would

need to have in its operations

specifications (ops specs) in order to get

a screening certificate. Each screening

company would write its own ops

specs; this document would emphasize

the capabilities and needs of the

screening company, and it would need

to be submitted to the FAA for approval.

Once the certificate is approved, the

screening company would be required

to maintain a complete copy of its ops

specs at its principal business office and

at each airport where it conducts

security screening as well as provide a

current copy to each carrier for which

it screens. The FAA assumes that the

ops specs would be amended 4 times a

year, twice by the screening company

and twice by the FAA. Total 10-year

costs sum to $513,700 (net present

value, $447,400).

Proposed § 111.115 describes the

procedures for approving a company’s

ops specs and future amendments to

these ops specs. After a company’s ops

specs are submitted, the FAA would

review them to consider whether

changes are needed. Further FAA

approval of the ops specs would be

necessary only if the screening company

sought to amend them. The screening

company would need to brief its

employees after initial FAA acceptance

of the ops specs and after each

amendment. The FAA assumes, for the

purpose of this analysis, that changes to

the ops specs would occur twice a year

on average. Total 10-year costs sum to

$5.29 million (net present value, $3.70

million).

Proposed § 111.117 would require

each screening company to allow each

carrier for which it performs screening

to inspect the screening company’s

personnel, facilities, equipment, and

records to determine compliance. Direct

air carriers currently inspect the

locations of the screening companies

that are screening for them; the FAA

assumes that the new requirements

would result in additional inspections.

Should an audit result in an alleged

violation, a screening company would

provide a copy of any proposed and

final enforcement action to each carrier

for which it screens. This proposed

requirement would assist the carriers in

evaluating the performance of their

screening companies. Ten-year costs

sum to $10.36 million (net present

value, $7.38 million).

Proposed § 111.119 would require

each certificated security screening

company to have a principal business

office with mailing address and to notify

the FAA of any address changes. The

FAA assumes that virtually all

businesses currently have a principal

business office, and expects that a

screening company would change its

mailing address once every 3 years on

average. Ten-year costs sum to $4,800

(net present value, $3,300).

Under proposed § 111.201, screening

companies would be required to prevent

the introduction of explosives,

incendiaries, or deadly or dangerous

weapon into sterile areas. In addition,

screening companies would be required

to staff their security screening

checkpoints. Companies that currently

screen would not incur additional costs.

However, indirect air carriers that

choose to screen would have new

responsibilities and costs; these costs

would include those for training new

personnel and, in some cases,

purchasing new equipment (the costs of

which are included in proposed

§ 109.207). Total 10-year costs for

§ 111.201 sum to $1.01 million (net

present value, $711,300).

Proposed § 111.205 would require

initial and recurrent training for persons

who screen passengers, checked

baggage, and carry-on items. This

training would include ensuring that

screeners work in a courteous and

efficient manner and in compliance

with the applicable civil rights laws of

the United States. This proposed section

also would require persons with

supervisory screening duties to have

initial and recurrent training that

includes leadership and management

subjects. Ten-year costs would be $8.29

million (net present value, $5.78

million).

Proposed § 111.209 would require all

companies providing screening services

to have qualified management and

technical personnel available at each

major screening locations. Among these

would be the screening performance

coordinator (SPC), CSS’s and Screeners

in charge (SIC’s). The SPC would be the

focal point for FAA communication on

security-related issues and

communication. All SPC’s would be

required to take annual classes in

leadership training, which would be a

new requirement. While each screening

company would be required to fill this

position, the FAA does not assume that

it would be a full time position at every

screening company. At smaller

companies, the persons who fill the SPC

positions could perform SPC duties on

a part time basis while performing other

duties at other times. The FAA calls for

comments from screening companies as

to the number of companies that already

have personnel performing these SPC

duties, and requests that all comments

be accompanied with clear

documentation. Ten-year costs for

§ 111.209 would be $67.27 million (net

present value, $47.06 million).

Proposed § 111.213 would specify the

requirements for screening companies

regarding training programs and

knowledge of subject areas. The FAA

proposes to create performance-based

training where screening companies

could use FAA-approved computerbased training (CBT) programs.

Screening companies would be

responsible for ensuring that their

trainees are able to pass FAA

knowledge-based and X-ray

interpretation tests at the end of their

initial training and that screening

personnel meet performance standards

thereafter. Ten-year costs sum to $7.78

million (net present value, $5.41

million).

Proposed § 111.215 would require

that all screening personnel pass

computerized tests at the conclusion of

their initial training and every year

thereafter and that the tests be

administered by air carrier personnel.

Each screening company would be

required to use an FAA-designed

computer-based test. The tests would be

designed to help ensure that screener

trainees have achieved the knowledge

and skills that they need to perform

their jobs effectively. In addition, the

FAA would require that all screening

personnel pass additional 1 hour tests

after their on-the-job-training. These

additional tests would be designed to

test proficiency and may require higher

scores than those the tests after initial

training. These subsequent tests would

not need to be administered by air

carrier personnel. Ten-year costs for this

proposed section sum to $3.44 million

(net present value, $2.38 million).

To increase screener professionalism,

proposed § 111.219 would require all

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 589

screening companies to issue letters of

completion of training to screeners upon

their successful completion of approved

courses of training. These letters of

completion would provide personnel

with official records of their specific

training accomplishments. The FAA

anticipates that screeners with evidence

of training could move more smoothly

between employers and that they would

be valued more highly because they

would not require as much training as

new hires. Most importantly, the FAA

believes that requiring screening

companies to issue letters of completion

to screeners for successful completion of

training would help enhance

professionalism in this essential

security job. Ten years’ costs sum to

$1.38 million (net present value,

$963,600).

Under proposed § 111.221, companies

that provide screening services would

be required to forward screener training

records to other screening providers

when requested by the screeners. This

requirement would help increase each

screener’s control over his or her own

mobility, and would resolve current

problems relating to control of screener

documents. Ten-year costs above and

beyond the SPC’s time sum to $151,300

(net present value, $105,500).

Under proposed § 111.223, each

screening company would be required

to use a threat image projection (TIP)

system for each X-ray and explosives

detection system (EDS) that it uses to

measure the screening company’s

performance. (TIP is capable of

introducing test objects to screeners on

the X-ray machines and EDS machines

at any rates set on the computers. The

success rates can easily be recorded and

later analyzed by the FAA, the carriers,

and the screening companies to monitor

continuously how well screening

locations are operating.) Proper

operation of TIP systems and data

collection would be critical to

measuring accurately screening

company performances. The FAA

would ultimately establish a

performance range that all screening

companies would be required to fall

within to be considered effective at

detecting possible threats. The FAA

would be responsible for collecting TIPrelated data; 10-year costs would sum to

$20.46 million (net present value,

$14.37 million).

Proposed §§ 108.103 (current § 108.7),

109.103, and 129.25(c) set forth changes

to the direct, indirect, and foreign air

carrier security programs. New program

sections would be required; these new

sections would reference each carrier’s

new responsibilities and requirements

vis-a-vis screening companies. Hence,

new sections would have to be written

and submitted to the FAA for approval,

and air carriers would need to expend

resources to maintain these new

sections. The proposed changes to

§ 109.103 also would require indirect air

carriers to acknowledge in writing their

receipt of approved security programs or

security program amendments from the

FAA. Ten-year costs for these sections

total $15.29 million (net present value,

$10.74 million).

The proposal would modify the

current regulatory text of proposed

§ § 109.105 (current § 109.5) and

129.25(e) to clarify the requirements and

make them consistent with the

organization of proposed § 108.105

(current § 108.25). Under these

proposals, the only substantive change

would affect indirect air carriers, as they

would be allowed to petition the FAA

to reconsider FAA amendments if the

petitions are submitted no later than 15

days before the effective dates of the

FAA amendment. Ten-year costs total

$14,800 (net present value, $10,400).

Proposed §§ 108.201(i) and (j);

109.203(b) and (c); and 129.25(l) and

(m) (all new sections) would require

each carrier to ensure that each of its

screening company’s actions are

consistent with part 111, the screening

company’s SSSP, and the screening

company’s ops specs. Each air carrier

would need to expend resources to

amend its security programs to include

these new oversight responsibilities. Air

carriers would also have to purchase

and maintain computer equipment

required to test screeners. The amounts

and types of equipment that air carriers

would need to provide to screening

companies would vary depending on

the size of the airports where the

screening is taking place. The FAA

currently is providing screening

companies at certain airports with

computers for CBT but would not

provide for the computer’s maintenance;

all other equipment would have to be

purchased and maintained by the

applicable air carriers. Ten-year costs

for these proposed sections sum to

$21.07 million (net present value,

$15.52 million).

Proposed §§ 108.205 (current

§ 108.17), 109.207, and 129.26 would be

amended to require that carriers use Xray systems in accordance with their

security program and applicable

screening company security programs.

Each carrier would need to ensure that

each X-ray system that uses TIP meets

the standards set forth in its security

program. As TIP is a new system, X-ray

systems that have been used at airports

have not been designed to run it.

Accordingly, many X-ray machines at

airports would need to be replaced with

equipment that is TIP compatible. The

FAA is providing carriers at certain

airports with the equipment required

but would not provide the maintenance

of these X-ray machines; all other

equipment would have to be purchased

and maintained by the applicable

carriers. The FAA proposes that the

deployment of these machines be

phased in over a 5-year period based on

the size and complexity of the airport.

In addition, foreign air carriers would

no longer have to ensure that their

screening operators be provided with

individual personal dosimeters to

measure exposure to X-rays; removal of

this requirement would result in cost

savings. Ten-year costs for this proposed

section sum to $69.39 million (net

present value, $57.20 million).

Proposed new §§ 108.229, 109.205,

and 129.25(n) would require that each

carrier monitor each screener training

test required under proposed § 111.215

for all screening companies screening

on the carrier’s behalf. This proposed

requirement is intended to increase air

carrier involvement with the training

and testing processes and to help deter

cheating. Each test monitor would have

to be a direct carrier employee (not a

contracted employee) who does not

have part 111 or other screening-related

responsibilities. These proposed

sections also would require that

screeners be evaluated by non-screening

supervisors once a year; direct and

foreign air carriers already have

supervisors do this, so the only

additional cost would be for indirect air

carriers. Ten-year costs for this

proposed section sum to $9.04 million

(net present value, $6.32 million).

Total 10-year costs for these proposals

would be $300.02 million (present

value, $219.22 million).

Benefits

The primary benefit of the proposed

rule would be significantly increased

protection to U.S. citizens and other

citizens traveling on U.S. domestic and

foreign air carrier flights from acts of

terrorism as well as increased protection

for those operating aircraft. Specifically,

the proposed rule is aimed at deterring

terrorism by preventing explosives,

incendiaries, and deadly or dangerous

weapons from being carried aboard

commercial flights in checked baggage,

carry-on baggage, cargo, and on persons.

Terrorism can occur within the

United States. Members of foreign

terrorist groups, representatives from

state sponsors of terrorism, and radical

fundamentalist elements from many

nations are present in the United States.

In addition, Americans are joining

590 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

terrorist groups. The activities of some

these individuals and groups go beyond

fund raising to recruiting other persons

(both foreign and U.S.) for activities that

include training with weapons and

making bombs. These extremists operate

in small groups and can act without

guidance or support from state sponsors.

This makes it difficult to identify them

or to anticipate and counter their

activities. The following discussion

outlines some of the concrete evidence

of the increasing terrorist threat within

the United States and to domestic

aviation.

Investigation into the February 1993

attack on the World Trade Center (WTC)

uncovered a foreign terrorist threat in

the United States that is more serious

than previously known. The WTC

investigation disclosed that Ramzi

Yousef had arrived in the United States

in September 1992 and had presented

himself to immigration officials as an

Iraqi dissident seeking asylum. Yousef

and a group of Islamic radicals in the

United States then spent the next 5

months planning the bombing of the

WTC and other acts of terrorism in the

United States. Yousef returned to

Pakistan on the evening of February 26,

1993, the same day that the WTC

bombing took place. Yousef traveled to

the Philippines in early 1994 and by

August of the same year had conceived

a plan to bomb as many as 12 U.S.

airliners flying between East Asian

cities and the United States.

Yousef and co-conspirators Abdul

Murad and Wali Khan tested the type of

explosive devices to be used in the

aircraft bombings and demonstrated the

group’s ability to assemble such a

device in a public place, in the

December 1994 bombing of a Manila

theater. Later the same month, the

capability to get an explosive device

past airport screening procedures and

detonate it aboard an aircraft also was

successfully tested when a bomb was

placed by Yousef aboard the first leg of

Philippine Airlines Flight 424 from

Manila to Tokyo. The device detonated

during the second leg of the flight, after

Yousef had deplaned at an intermediate

stop in the Philippine city of Cebu.

Preparations for executing the plan

were progressing rapidly. However, the

airliner bombing plot was discovered in

January 1995 by chance after a fire led

Philippine police to the Manila

apartment where the explosive devices

were being assembled. Homemade

explosives, batteries, timers, electronic

components, and a notebook full of

instructions for building bombs were

discovered. Subsequent investigations

of computer files taken from the

apartment revealed the plan, in which 5

terrorists were to have placed explosive

devices aboard United, Northwest, and

Delta airline flights. In each case, a

similar technique was to be used. A

terrorist would fly the first leg of a flight

out of a city in East Asia, planting the

device aboard the aircraft and then

deplane at an intermediate stop. The

explosive device would then destroy the

aircraft, continuing on a subsequent leg

of the flight to the United States. It is

likely that thousands of passengers

would have been killed if the plot had

been successfully carried out.

Yousef, Murad, and Khan were

arrested and convicted in the bombing

of Philippine Airlines flight 424 and in

the conspiracy to bomb U.S. airliners.

Yousef was sentenced to life

imprisonment for his role in the Manila

plot, while the 2 other co-conspirators

have been convicted. Yousef also was

convicted and sentenced to 240 years

for the World Trade Center bombing.

However, there are continuing concerns

about the possibility that other

conspirators remain at large. The airline

bombing plot, as described in the files

of Yousef’s laptop computer, would

have had 5 participants. This suggests

that, while Yousef, Murad and Khan are

in custody, there may be others at large

with the knowledge and skills necessary

to carry out similar plots against civil

aviation.

The fact that Ramzi Yousef was

responsible for both the WTC bombing

and the plot to bomb as many as 12

United States air carrier aircraft shows

that: (1) Foreign terrorists are able to

operate in the U.S. and (2) Foreign

terrorists are capable of building and

artfully concealing improvised

explosive devices that pose a serious

challenge to aviation security. This, in

turn, suggests that foreign terrorists

conducting future attacks in the U.S.

may choose civil aviation as a target.

Civil aviation’s prominence as a

prospective target is clearly illustrated

by the circumstances of the 1995 Yousef

conspiracy.

The bombing of a Federal office

building in Oklahoma City, Oklahoma

shows the potential for terrorism from

domestic groups. While the specific

motivation that led to the Oklahoma

City bombing would not translate into a

threat to civil aviation, the fact that

domestic elements have shown a

willingness to carry out attacks resulting

in indiscriminate destruction is

worrisome. At a minimum, the

possibility that a future plot hatched by

domestic elements could include civil

aircraft among possible targets must be

taken into consideration. Thus, an

increasing threat to civil aviation from

both foreign sources and potential

domestic ones exists and needs to be

prevented and/or countered.

That both the international and

domestic threats have increased is

undeniable. While it is extremely

difficult to quantify this increase in

threat, the overall threat can be roughly

estimated by recognizing the following:

• U.S. aircraft and American

passengers are representatives of the

United States, and therefore are targets;

• Up to 12 airplanes could have been

destroyed and thousands of passengers

killed in the actual plot described

above;

• These plots came close to being

carried out; it was only through a

fortunate discovery and then extra tight

security after the discovery of the plot

that these incidents were thwarted;

• It is just as easy for international

terrorists to operate within the United

States as domestic terrorists, as

evidenced by the World Trade Center

bombing; therefore,

• Based on these facts, the increased

threat to domestic aviation could be

seen as equivalent to some portion of 12

Class I Explosions on U.S. airplanes.

(The FAA defines Class I Explosions as

incidents that involve the loss of an

entire aircraft and incur a large number

of fatalities.)

In 1996, both Congress and the White

House Commission on Aviation Safety

and Security (Commission)

recommended further specific actions to

increase civil aviation security. The

Commission stated that it believes that

the threat against civil aviation is

changing and growing, and

recommended that the Federal

Government commit greater resources to

improving civil aviation security.

President Clinton, in July 1996, declared

that the threat of both foreign and

domestic terrorism to aviation is a

national threat. The U.S. Congress

recognized this growing threat in the

Federal Aviation Reauthorization Act of

1996 by: (1) Authorizing money for the

purchase of specific anti-terrorist

equipment and the hiring of extra civil

aviation security personnel; and (2)

Requiring the FAA to promulgate

additional security-related regulations,

including this proposal.

In the absence of increased protection

for the U.S. domestic passenger air

transportation system, it is conceivable

that the system would be targeted for

future acts of terrorism. If even one such

act were successful, the traveling public

would demand immediate increased

security. Providing immediate

protection on an ad hoc emergency basis

would result in major inconveniences,

costs, and delays to air travelers that

may substantially exceed those imposed

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 591

by the planned and measured steps

contained in this proposal.

Based on the above statement, and

after evaluating feasible alternative

measures, the FAA concludes that this

proposed rule sets forth the best method

to provide increased security at the

present time. Notwithstanding the

above, it is helpful to consider, to the

limited extent possible, the benefits of

this proposal in reducing the costs

associated with terrorist acts. The

following analysis describes alternative

assumptions regarding the number of

terrorist acts prevented and potential

market disruptions averted that result in

the proposed rule benefits at least equal

to the proposed rule costs. This is

intended to allow the reader to judge the

likelihood of benefits of the proposed

rule equaling or exceeding its cost.

The cost of a catastrophic terrorist act

can be estimated in terms of lives lost,

property damage, decreased public

utilization of air transportation, etc.

Terrorists acts can result in the

complete destruction of an aircraft with

the loss of all on board. The FAA

considers a Boeing 737 as representative

of a typical airplane flown domestically.

The fair market value of a Boeing 737

is $16.3 million, and the typical 737

airplane has 113 seats. It flies with an

average load factor of 64.7%, which

translates into 73 passengers per flight;

the airplane would also have two pilots

and three flight attendants.

A terrorist catastrophic event could

also result in fatalities on the ground.

However, looking at the number of

accidents including aircraft covered by

this proposed rule and the number of

fatalities on the ground over the last ten

years, the average fatality was less than

0.5 persons per accident. Therefore, the

FAA will not assume any ground

fatalities in this analysis.

In order to provide a benchmark

comparison of the expected safety

benefits of rulemaking actions with

estimated costs in dollars, a minimum

of $2.7 million is used as the value of

avoiding an aviation fatality (based on

the willingness to pay approach for

avoiding a fatality). In these

computations, the present value of each

incident was calculated using the

current discount rate of 7 percent.

Applying this value, the total fatality

loss of a single Boeing 737 is

represented by a cost $210.6 million (78

× $2.7 million). The safety related costs

of a single domestic terrorist act on civil

aviation sum to $271.18 million (net

present value, $190.46 million).

Certainly the primary concern of the

FAA is preventing loss of life, but there

are other considerations as well.

Another large economic impact is

related to decreased airline travel

following a terrorist event. A study

performed for the FAA by PailenJohnson Associates, Inc., An

Econometric Model of the Impact of

Terrorism on U.S. Air Carrier North

Atlantic Operations, indicated that it

takes about 9 to 10 months for passenger

traffic to return to the pre-incident level

after a single event. Such a reduction

occurred immediately following the

destruction of Pan Am Flight 103 over

Lockerbie, Scotland in December 1988.

In general, 1988 enplanements were

above 1987’s. There was a dramatic falloff in enplanement in the first 3 months

of 1989 immediately following the Pan

Am 103 tragedy, and it took until

November 1989 for enplanements to

approximate their 1987 and 1988 levels.

Trans-Atlantic enplanements

increased, from 1985 to 1988, at an

annual rate of 10.7 percent. Projecting

this rate to 1989 would have yielded

1989 enplanements of 8.1 million, or 1.6

million more than Pan Am actually

experienced. This represents almost a

20 percent reduction in expected

enplanements caused by the destruction

of Pan Am 103 by terrorists.

The estimated effect of a successful

terrorist act on the domestic market has

not been studied. Although there are

important differences between

international and domestic travel (such

as the availability of alternative

destinations and means of travel), the

FAA believes that the traffic loss

associated with international terrorist

acts is representative of the potential

domestic disruption.

There is a social cost associated with

travel disruptions and cancellations

caused by terrorist events. The cost is

composed of several elements. First is

the loss associated with passengers

opting not to fly—the value of the flight

to the passenger (consumer surplus) in

the absence of increased security risk

and the profit that would be earned by

the airline (producer surplus). Even if a

passenger opts to travel by air, the

additional risk may reduce the

associated consumer surplus. Second,

passengers who cancel plane trips

would not purchase other goods and

services normally associated with the

trip, such as meals, lodging, and car

rental, which would also result in losses

of related consumer and producer

surplus. Finally, although spending on

air travel would decrease, pleasure and

business travelers may substitute

spending on other goods and services

(which produces some value) for the

foregone air trips. Economic theory

suggests that the sum of the several

societal value impacts associated with

canceled flights would be a net loss. As

a corollary, prevention of market

disruption (preservation of consumer

and producer welfare) through

increased security created by the

proposed rule is a benefit.

The FAA is not able to estimate the

actual net societal cost of travel

disruptions and the corollary benefit

gained by preventing the disruptions.

However, there is a basis for judging the

likelihood of attaining benefits by

averting market disruption sufficient, in

combination with safety benefits, to

justify the proposed rule. The

discounted cost of this proposed rule is

$219.22 million, while the discounted

benefits for each Class I Explosion

averted comes to $190.46 million.

Hence, if 1 Class I Explosion is averted,

the present value of losses due to market

disruption must at least equal $28.77

million ($219.22 million less $190.46

million—one Class I Explosion).

The value of market loss averted is the

product of the number of foregone trips

and the average market loss per trip

(combination of all impacts on

consumer and producer surplus). If one

uses an average ticket price of $160 as

a surrogate of the combined loss,

preservation of 179,800 lost trips would

be suffered, in combination with the

safety benefits of 1 averted Class I

Explosion, for the benefits of proposed

rule to equal costs. This represents less

than 0.1 percent of annual domestic

trips (the traffic loss caused by Pan Am

103 on trans-Atlantic routes was 20

percent). Calculations can be made on

the minimum number of averted lost

trips needed if the net value loss was

only 75 percent of the ticket price or

exceeded the ticket price by 25 percent.

If total market disruption cost was $130

or $200 per trip, a minimum retention

of 221,300 and 143,800 lost trips,

respectively, would need to occur for

the proposed rule benefits to equal the

proposed rule costs, assuming 1 Class I

Explosion would be prevented. The

FAA requests comments on the

potential size of market loss per trip and

number of lost trips averted.

The FAA used the same set of benefits

for another proposed rule, ‘‘Security of

Checked Baggage on Flights Within the

United States; Notice of Proposed

Rulemaking’’ (64 FR 19220, April 19,

1999) as both rulemakings have the

same goals—to increase significantly the

protection to U.S. citizens and other

citizens traveling on U.S. domestic air

carrier flights from acts of terrorism and

to increase protection to those persons

operating aircraft. Accordingly, the FAA

calculated the economic impact and the

potential averted market disruption

sufficient, in combination with safety

benefits, to justify both proposed rules.

592 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

These values can be seen in the full

analysis contained in the docket.

The FAA stresses that the range of

trips discussed in the above paragraph

should be looked upon as examples and

does not represent an explicit

endorsement that these would be the

exact number of trips that would

actually be lost. As noted above, it is

important to compare, to the limited

extent possible, the cost of this proposal

to some estimate of the benefit of

increased security it would provide as

that level of security relates to the threat

level.

Based on the White House

Commission recommendation, recent

Congressional mandates and the known

reaction of U.S. citizens to any air

carrier disaster, the FAA determines

that proactive regulation is warranted to

prevent terrorist acts (such as Class I

Explosions) before they occur.

VIII.B. Initial Regulatory Flexibility

Determination

The Regulatory Flexibility Act of 1980

(RFA) was enacted by Congress to

ensure that small entities (small

business and small not-for-profit

Government jurisdictions) are not

unnecessarily and disproportionately

burdened by Federal regulations. The

RFA, which was amended in March

1996, requires regulatory agencies to

review rules to determine if they have

‘‘a significant economic impact on a

substantial number of small entities.’’

The Small Business Administration

defines small entities to be those with

1,500 or fewer employees for the air

transportation industry. For this

proposed rule, the small entity groups

are considered to be both scheduled air

carrier operators (subject to FAR part

108) and screening companies having

1,500 or fewer employees. The FAA has

identified a total of 41 direct air carriers

and 38 screening companies that meet

this definition.

The FAA has estimated the

annualized cost impact on each of the

small entities, but has not conclusively

determined whether or not the proposed

rule would have a significant economic

impact on a substantial number of small

air carrier and screening company

entities. Accordingly, the Agency

prepared an initial regulatory flexibility

analysis and invites comments on the

Agency’s conclusion and on the

analysis. This decision is based on the

following analyses:

• One percent of the 1997 annual

median revenue of the 41 small direct

air carriers impacted by this proposed

rule, which is $809,610 in 1997 dollars,

is considered economically significant.

None of these entities would incur a

substantial economic impact in the form

of annualized costs in excess of

$809,610 as the result of the proposed

rule. However, as will be discussed

further below, several of the small direct

air carriers are having financial

difficulties and may have trouble

meeting the requirements of this

proposed rule. Furthermore, the cost

burden is not strictly proportionate to

the size of the airline as measured by

the number of employees. In addition,

as discussed below, the FAA was unable

to obtain complete financial data on

approximately one third the air carriers

and believes it important to show the

potential impact on these entities for the

sake of completeness and in the hope of

eliciting substantive comments.

• One percent of the 1997 annual

median revenue of the 38 small

screening companies impacted by this

proposed rule, which is $296,830 in

1997 dollars, is considered

economically significant. None of these

entities would incur a substantial

economic impact in the form of

annualized costs in excess of $296,830

as the result of the proposed rule.

However, based on the data available,

some of the screening companies may

have trouble meeting the requirements

of the proposed rule due to financial

difficulties. In addition, as discussed

below, the FAA was unable to obtain

any data on half of the screening

companies and complete data on most

of the rest, and so believes it important

to show the potential impact on these

entities for the sake of completeness and

in the hope of eliciting substantive

comments.

The FAA has not performed this type

of analysis for the indirect carriers that

would choose to screen cargo. Each of

these carriers would have chosen to be

certificated under part 111 and thus

would be voluntarily subjected to these

proposals. Since the carriers would have

chosen to incur the costs, the FAA

believes that none of these carriers

would have done so if it were not in

their financial interests. The FAA does

not know which carriers would be

certificated under proposed part 111

and so does not know how many of

these carriers would be small entities.

The FAA seeks comments concerning

whether any small indirect carriers

would screen cargo and requests that all

comments be accompanied with clear

documentation.

Initial Regulatory Flexibility Analysis

Under section 603(b) of the RFA (as

amended), each initial regulatory

flexibility analysis is required to address

the following points: (1) Reasons why

the FAA is considering the proposed

rule, (2) The objectives and legal basis

for the proposed rule, (3) The kind and

number of small entities to which the

proposed rule would apply, (4) The

projected reporting, recordkeeping, and

other compliance requirements of the

proposed rule, and (5) All Federal rules

that may duplicate, overlap, or conflict

with the proposed rule. The FAA will

perform this analysis for small direct air

carrier and small screening companies

separately.

1. Air Carriers

Reasons why the FAA is considering

the proposed rule.—Over the past

several years, both Congress and the

FAA have recognized that the threat

against civil aviation is changing and

growing (see the background section of

the preamble for a more detailed

discussion of this threat). Terrorist and

criminal activities within the United

States have forced the Congress, the

FAA and other Federal agencies to

reevaluate the domestic threat against

civil aviation. The proposed rule is

intended to counter this increased threat

to U.S. civil aviation security.

The objectives and legal basis for the

proposed rule.—The objective of the

proposed rule is to increase protection

to Americans and others traveling on

U.S. domestic air carrier flights from

terrorist acts. Specifically, the proposed

rule is aimed at preventing explosives

from being on board commercial flights

either in carry-on baggage or checked

cargo.

The legal basis for the proposed rule

is found in 49 U.S.C. 44901 et seq.

Among other matters the FAA must

consider as a matter of policy are

maintaining and enhancing safety and

security in air commerce as its highest

priorities (49 U.S.C. 40101(d)).

The kind and number of small entities

to which the proposed rule would

apply.—The proposed rule applies to

150 scheduled airlines subject to FAR

part 108, of which 41 are small

scheduled operators (with 1,500 or

fewer employees).

The projected reporting,

recordkeeping, and other compliance

requirements of the proposed rule.—As

required by the Paperwork Reduction

Act of 1995 (44 U.S.C. 3507(d)), the

FAA has submitted a copy of these

proposed sections to the Office of

Management and Budget (OMB) for its

review. Four proposed sections would

impose paperwork costs on small direct

air carriers; these are described in detail

in the full analysis contained in the

docket. The average amount of

paperwork time and costs for each small

direct air carrier sums to 270.9 hours,

costing $6,395 per year. Over 10 years,

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total time and costs for all small direct

air carriers sum to 111,048.5 hours

costing $2,621,950.

All federal rules that may duplicate,

overlap, or conflict with the proposed

rule.—The FAA is unaware of any

Federal rules that either duplicate,

overlap, or conflict with the proposed

rule.

Other Considerations:

Affordability Analysis

For the purpose of this analysis, the

degree to which small entities can

‘‘afford’’ the cost of compliance is

predicated on the availability of

financial resources. Initial

implementation costs can be paid from

existing company assets such as cash,

by borrowing, or through the provision

of additional equity capital. Continuing

annual costs of compliance may be

accommodated either by accepting

reduced profits, by raising ticket prices,

or by finding other ways of offsetting

costs.

In this analysis, one means of

assessing the affordability is the ability

of each of the small entities to meet its

short-term obligations. According to

financial literature, a company’s shortrun financial strength is substantially

influenced by its working capital

position and its ability to pay short-term

liabilities, among other things.

Net working capital is the excess of

current assets over current liabilities. It

represents the margin of short-term

debt-paying ability over existing shortterm debt. In addition to the amount of

net working capital, two analytical

indexes of current position are often

computed: (1) Current ratio; and (2)

Quick ratio. The current ratio (i.e.,

current assets divided by current

liabilities) helps put the amount of net

working capital into perspective by

showing the relationship between

current assets and short-run debt. And

the quick ratio (sometimes called the

acid test ratio) focuses on immediate

liquidity (e.g., cash, marketable

securities, accounts receivable, divided

by current liabilities). A decline in net

working capital, the current ratio, and

the quick ratio over a period of time

(say, 3 years, 4 years, etc.) may indicate

that a company is losing financial

solvency. Negative net working capital

is an indication of financial difficulty. If

a company is experiencing financial

difficulty, it is less likely to be able to

afford additional costs.

There is an alternative perspective to

the assessment of affordability based on

working capital of this proposed rule.

The alternative perspective pertains to

the size of the annualized costs of the

proposed rule relative to annual

revenues. The lower the relative

importance of the costs, the greater the

likelihood that implementing offsetting

cost-saving efficiencies or raising fares

to cover increased costs will not

substantially decrease the number of

passengers.

The FAA collected financial

information on small air carriers for

1994 to 1997. Unfortunately, some of

the needed information was not

available; in those cases, the FAA

estimated revenue, assets, and liabilities

based on taking averages of similar sized

companies. For example, many of the

financial statistics for 13 of the small

regional operators were not available.

Hence, because of the paucity of data for

small regionals, many of the

conclusions for many of the small

regional carriers may be questionable.

The financial information suggests the

following:

Liquidity Analysis/Profitability

Analysis—Small Air Carriers

• Six of these entities have

experienced increases in their net

working capital as well as their current

and quick ratios over the past 3 or 4

years. They also are generally profitable

and, therefore, probably would have

financial resources available to meet the

requirements of this proposed rule.

• One small entity was unprofitable

in 1997; however, it was profitable in

the 3 previous years. In addition, it has

positive net working capital, and its

current and quick ratios have been

strong. It is likely that this carrier would

not have trouble meeting the costs of

this proposed rule.

• For 10 currently profitable small

entities, their ability to afford the cost of

compliance is less certain. This

uncertainty stems from the fact that the

financial performances of these entities

have been inconsistent over the past 4

years.

• The current liquidity and

profitability of 11 small entities would

require action to finance the expected

cost of compliance imposed by this

NPRM. Over the past 2 or 3 years, each

of these small entities has had negative

net working capital. In addition, their

respective current and quick ratios have

generally been on a decline. They have

frequently experienced financial losses.

• For the 13 air carriers classified as

small regionals for which the FAA does

not have complete data, it appears likely

that 7 of these air carriers would

probably be able to afford the cost of

compliance associated with this

proposed rule, but the other 6 may have

problems. This conclusion is based on

their projected 1997 profitability.

Relative Cost Impact

• The other alternative of assessing

affordability, annualized cost of

compliance relative to the total

operating revenues, shows that for each

of the 41 small air carriers impacted by

this NPRM, there would be relatively

small impacts for most of the small

entities. The annualized cost of

compliance relative to total operating

revenues would be less than or equal to

0.61 percent in all cases.

• Hence, for all of the air carriers, the

ratio of annualized proposed rule costs

to revenues would be less than 1.0

percent for each of the 3 years from

1995 through 1997. For all air carriers

that have liquidity and/or profitability

problems, there appears to be the

prospect of absorbing the cost of the

proposed rule through some

combination of fare increases and cost

efficiencies.

No clear conclusion can be drawn

with regard to the abilities of some

small entities to afford the cost of

compliance that would be imposed by

this NPRM. On one hand, the Liquidity

Analysis/Profitability Analysis does not

paint a positive picture of the ability of

some of the small entities impacted by

this NPRM to pay near-term expenses

imposed by this rule, whereas the

Relative Cost Impact Analysis indicates

that most of those same small entities

may be able, over time, to find ways to

offset the increased cost of compliance.

As the result of information ascertained

from both of these analyses, there is

uncertainty as to whether all of the

small entities would be able to afford

the additional cost of doing business

due to compliance with this NPRM.

Because of this uncertainty, the FAA

solicits comments from the aviation

community (especially from small air

carriers with less than 1,500 employees)

as to what extent small operators subject

to this NPRM would be able to afford

the cost of compliance. The FAA

requests that all comments be

accompanied with clear supporting

data.

Disproportionality Analysis

On average, the 41 small entities

would be disadvantaged relative to large

air carriers due to disproportionate cost

impacts. This would occur due to

several reasons:

• Individual large air carrier’s total

operational revenues and current assets

are, on average, well over 100 times

larger than the revenues and assets for

small air carriers. However, the large air

carriers don’t deal with 100 times as

many checkpoints, X-ray systems, or

screening companies. So, these air

594 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

carriers enjoy economies of scale in

terms of the costs of complying with

this proposed rule;

• All of the X-ray systems that the

FAA anticipates purchasing would be

purchased at the higher volume airports,

so that almost all of them would be

purchased for large air carriers; indeed,

only 1 of these systems would be

purchased for a small air carrier. This

would save large air carriers almost $22

million; and

• All air carriers, whether large or

small, would have some of the same

fixed administrative costs, such as

writing up and maintaining new

sections to their security programs.

Having such costs the same would give

an advantage to large air carriers when

looking at the proportionate effect of

this proposed rule.

Competitiveness Analysis

This proposed rule would not impose

significant costs on any small carriers.

However, due to the financial problems

that certain air carriers are having, there

may be some impacts on the relative

competitive positions of these carriers

in markets served by them. A more

detailed evaluation is described in the

full analysis contained in the docket.

The FAA solicits comments on this

issue from the U.S. airline industry and

small airlines in particular. Specifically,

commenters are asked to provide

information on the impact that this

proposed rule would have on the

continued ability of small airlines to

compete in their current markets.

Comments are especially sought from

operators with 1,500 or fewer employees

who would be impacted by this

proposed rule. The FAA requests that

supporting data on markets and cost be

provided with the comments.

Business Closure Analysis

The FAA is unable to determine with

certainty the extent to which those

small entities that would be

significantly impacted by this proposed

rule would have to close their

operations. However, the profitability

information and the affordability

analysis can be indicators in business

closures.

In determining whether or not any of

the 41 small entities would close as the

result of compliance with this proposed

rule, one question must be answered:

‘‘Would the cost of compliance be so

great as to impair an entity’s ability to

remain in business?’’ A number of these

small entities are already in serious

financial difficulty. To what extent the

proposed rule makes the difference in

whether these entities remain in

business is difficult to answer. The FAA

believes that the likelihood of business

closure for any of these small air carriers

as a result of this proposed rule is low

to moderate. However, since there is

uncertainty associated with whether

some of the small entities would go out

of business as the result of the

compliance cost of this proposed rule,

the FAA solicits comments from the

aviation community as to the likelihood

of this occurrence. As noted above, the

FAA requests that all comments be

accompanied with clear supporting

data.

Alternatives

The FAA considered alternatives to

the proposed rule for small direct air

carriers. These alternatives have

compliance costs that range from $13.30

million to $19.95 million.

Alternative 1—Status Quo. Under this

alternative, the FAA would exempt

small direct air carriers from all

requirements of this proposed rule.

Continuing with this policy would be

the least costly course of action but also

would be less safe than the proposed

rule; direct air carriers are ultimately

responsible for proper screening, as they

must be able to ensure that the

screening companies are in compliance

and that screening personnel are

performing adequately. The FAA

believes that the threat to civil aviation

within the United States has increased

and that further rulemaking is

necessary. Thus, this alternative is not

considered to be acceptable because it

permits continuation of an unacceptable

level of risk to U.S. airline passengers.

In addition, the FAA would not meet

the Congressional mandate.

Alternative 2.—The FAA considered

doing away with the test monitoring

requirements of screening companies by

small direct air carriers.

The proposal would require that each

carrier monitor each screener training

test for all screening companies that

conduct screening on the air carrier’s

behalf. Each test monitor would have to

be a direct air carrier employee. This

alternative would result in cost savings

to each small direct air carrier. Small

carriers would no longer have to process

request letters from the screening

companies or have employees monitor

the tests. Over 10 years, this alternative

would save all small direct air carriers

$2.68 million (net present value, $1.73

million), resulting in total compliance

costs of $17.27 million (net present

value, $12.54 million).

The FAA believes that this alternative

would not enhance security. Because air

carriers are ultimately responsible for

ensuring the safe and proper screening

of persons and property, the FAA

believes that it is important to ensure air

carrier involvement with critical aspects

of this rulemaking. Monitoring testing is

a critical aspect of this rulemaking, for

it helps to prevent potential screeners

from passing the tests by cheating and

other unauthorized conduct. Removing

the monitoring requirement would

diminish the emphasis and importance

that this proposed rule places on air

carrier oversight. In addition, retaining

the monitoring requirement helps to

support the concept of a balance of

responsibilities between screening

companies and the air carriers for which

they screen. Under this alternative,

there would be less coordination

between small air carriers and screening

companies. The FAA believes that

potential cost savings would be

outweighed by a reduction in security.

Alternative 3.—The FAA considered

not requiring that smaller screening

companies obtain approval from their

carriers before submitting their security

program amendments to the FAA.

The proposal would require screening

companies to include in any proposed

amendment packages that they send to

the FAA statements that all carriers for

which they screen have been advised of

the proposed amendments and approve

of them. Hence, each air carrier would

have to process and respond to any

proposed amendment by the screening

companies that conduct screening on its

behalf. This alternative would result in

cost savings to each small direct air

carrier. These carriers would not need to

spend time evaluating the proposed

amendments for the screening

companies. Hence, the direct air carriers

would no longer have to expend

resources evaluating the proposed

amendments by the screening

companies. Over 10 years, this

alternative would save all small direct

air carriers $6.65 million (net present

value, $4.67 million), resulting in total

compliance costs of $13.30 million (net

present value, $9.60 million).

The FAA believes that this alternative

would harm security. Air carriers are

responsible, by statute, for screening

and would be held responsible along

with the screening companies for

complying with part 111 and the SSSP.

The carriers would therefore need to be

kept informed about any changes to

screening-related regulations and

should have the opportunity to

comment on and approve of them before

the FAA approves the changes. The

FAA would have a difficult time

holding carriers accountable for changes

of which they were not made aware; this

alternative would ensure that some air

carriers were not made aware of all

changes. Hence, under this alternative,

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 595

all carriers would not be informed of all

screening-related changes to the

applicable SSSP. The FAA believes that

potential cost savings would be

outweighed by a reduction in security.

Alternative 4—The FAA considered

not requiring that small air carriers

install and operate TIP on their X-ray

systems.

Under the proposal, each air carrier

would need to ensure that each X-ray

system that it uses has a TIP system that

meets the standards set forth in its

security program. As TIP is a new

system, some older X-ray systems have

not been designed to run TIP.

Accordingly, many X-ray systems at

airports would need to be replaced with

newer systems that are TIP compatible.

This alternative would result in cost

savings to all small air carriers. These

carriers would not have to purchase

these new X-ray systems or maintain the

TIP portions of the systems annually.

Over 10 years, this alternative would

save all small air carriers $6.09 million

(net present value, $4.58 million),

resulting in total compliance costs of

$13.30 million (net present value, $9.60

million).

The FAA believes that this alternative

would harm security. Promoting this

alternative would result in inconsistent

measurements of performance at

different airports and even at different

screening locations within airports; the

FAA believes that it is important to have

consistent measurements of

performance at all screening locations.

In addition, the FAA needs to ensure

the same level of safety and continuity

at all of the Nations airports and

screening locations. Not having TIP

would result in a reduction in security

for those small air carriers covered

under this alternative in particular and

for the entire aviation system in general.

Hence, under this alternative, there

would be a decrease in screener

effectiveness and a reduction in the

number of ways to measure this

decrease. The FAA believes that

potential cost savings would be

outweighed by a reduction in security.

Alternative 5.—Proposed Rule. This

alternative represents the proposed rule

for direct air carriers. Under this

alternative, small direct air carriers

would be subject to all aspects of this

proposed rulemaking. The cost of

compliance expected to be incurred by

the 41 small entities subject to the

requirements of the proposed rule is

estimated to be $19.95 million ($14.27

million, discounted) over the next 10

years. This alternative is preferred

because the FAA believes that it has the

best balance between costs and benefits

for all screening companies while

enhancing aviation safety and security

(in the form of risk reduction) for the

traveling public.

2. Screening Companies

Reasons why the FAA is considering

the proposed rule.—The reasons are the

same as those discussed above for the

small air carriers.

The objectives and legal basis for the

proposed rule.—The objectives and

legal basis are the same as those

discussed previously for the small air

carriers.

The kind and number of small entities

to which the proposed rule would

apply.—The proposed rule applies to 66

screening companies that screen for

direct air carriers subject to FAR parts

108 and 129, of which 38 are small

entities (with 1,500 or fewer

employees).

The projected reporting,

recordkeeping, and other compliance

requirements of the proposed rule.—As

required by the Paperwork Reduction

Act of 1995 (44 U.S.C. 3507(d)), the

FAA has submitted a copies of these

proposed sections to the Office of

Management and Budget (OMB) for its

review. Twelve proposed sections

would impose paperwork costs on small

screening companies; these are

described in detail in the full analysis

contained in the docket. The average

amount of paperwork for each small

screening company totals 1,861.0 hours

costing $78,259 over 10 years. Over 10

years, total time and costs for all small

screening companies sum to 70,718

hours costing $2,973,836.

All Federal rules that may duplicate,

overlap, or conflict with the proposed

rule.—The FAA is unaware of any

Federal rules that either duplicate,

overlap, or conflict with the proposed

rule.

Other Considerations

Affordability Analysis

The previous discussion under

‘‘Affordability Analysis’’ for small air

carriers is applicable to small screening

companies.

The FAA attempted to collect

financial information on small screening

companies. In many cases, the data were

not available; data were available for

only 19 companies for 1994 to 1997. Of

the 38 small screening companies, 8

were small air carriers that screen for

themselves and other air carriers; the

financial information available is the

same as was used in the previous small

air carrier analysis. Unfortunately,

though, there is no requirement for

screening companies to report their

financial data as there is for air carriers,

so there is no readily available source

for financial information. In addition,

many of these companies are privately

held companies that do not have to

report their assets, liabilities, profits,

and revenues. The FAA was able to find

some information for 11 screening

companies, but the scope of the data

varied extensively; some of these

companies have not updated their

publicly disclosed financial data in

several years. For 2 of the companies,

the most recent data publicly available

were from 1993, another had current

assets and liabilities available only for

1994, while a fourth had net profits,

current assets, and current liabilities

available for only 1994 and 1995. In

many cases, total operating revenue and

quick assets were available, at most, for

1 year.

Another problem facing this type of

financial analysis for a company that

provides many services to include

screening is that no matter how small a

percentage of its business comes from

screening, the company is being

considered under this Initial Regulatory

Flexibility Analysis if it has less than

1,500 employees. Neither finding data

for such companies nor applying this

data to other screening companies is

straightforward. In addition, of the 18

screening companies for which the FAA

had (or estimated) 1997 financial data,

8 of the 9 largest companies were small

air carriers (and some of the data for

these were based on estimates). Hence,

it is difficult to extrapolate their

financial information to makes

estimations for other small screening

companies.

The FAA attempted to make estimates

based on the available data. The FAA

requests financial data for all screening

companies, particularly those where no

information was publicly available; in

all cases, the FAA requests that all data

be accompanied by clear

documentation.

The financial information suggests the

following:

Liquidity Analysis/Profitability Analysis

• Of the 6 screening companies that

are also air carriers for which the FAA

has complete data on, 2 would probably

have no problem meeting the proposed

rule’s requirements; two might have

trouble meeting the proposed rule’s

requirements due to their inconsistent

financial performance in previous years;

and two probably would have trouble

meeting the proposed rule’s

requirements due to poor financial

performance.

• The other 2 screening companies

that also are air carriers are small

regional air carriers for which, as noted

596 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

previously, the FAA did not have

complete data; it appears that both

would probably be able to afford the

cost of compliance associated with this

proposed rule. This conclusion is based

on their projected 1997 profitability.

As discussed above, the FAA has

incomplete data on the remaining 11

screening companies and had to

estimate portions of their financial data.

Accordingly, these conclusions are less

certain:

• Five of these entities have

experienced increases in their net

working capital as well as their current

and quick ratios over the past 3 or 4

years. They also are generally profitable

and therefore probably would have

financial resources available to meet the

requirements of this proposed rule.

• One small entity was unprofitable

in 1994 but has been profitable in the

last 3 years. Another small entity has

been profitable in the past 2 years. Both

now have positive net working capital,

and their current and quick ratios have

been strong. It is likely that these

companies would not have trouble

meeting the costs of this proposed rule.

• For two small entities, their ability

to afford the cost of compliance is less

certain. For one of these, while it was

profitable for all 4 years, its net working

capital as well as its current and quick

ratios have been declining; in addition,

it had negative net working capital in

1996 and 1997. For the other, while it

has had positive net working capital for

the last 3 years, it has not been

profitable in 2 of these 3 years.

• The current liquidity and

profitability of 2 small entities would

require action to finance the expected

cost of compliance imposed by this

NPRM. Over the past 2 or 3 years, each

of these small entities has had negative

net working capital. In addition, their

respective current and quick ratios have

generally been on a decline. They have

frequently experienced financial losses.

Relative Cost Impact

• In looking at the annualized cost of

compliance relative to the total

operating revenues for each of the 8

small air carriers that also provide

screening services, the FAA notes that

the costs show relatively small impacts

for these small entities. The annualized

cost of compliance relative to total

operating revenues would be less than

or equal to 0.12 percent.

• In looking at the annualized cost of

compliance relative to the total

operating revenues for the other 11

small entities, these ratios are not as

benign. The annualized cost of

compliance relative to total operating

revenues would be less than or equal to

3.19 percent. For two companies, this

ratio exceeds 1.0 percent for all three

years examined; each of these 3

companies was profitable for the years

examined. It is important to emphasize,

once again, that many of these ratios are

based on estimated total operating

revenues.

• Hence, for each of the small

screening companies, the ratio of

annualized proposed rule costs to

revenues would be no more than 3.19

percent for each of the 3 years from

1995 through 1997. For the 4 screening

companies that had liquidity and/or

profitability problems in 1997, this ratio

has been no greater than 0.38 percent

over this 3-year period, so there appears

to be the prospect of absorbing the cost

of the proposed rule through price and

production efficiencies.

No clear conclusion can be drawn

with regard to the abilities of some

small entities to afford the costs of

compliance that would be imposed by

this NPRM. On one hand, the Liquidity

Analysis/Profitability Analysis does not

portray a positive picture of the ability

of some of the small entities impacted

by this NPRM to pay near-term expenses

imposed by this rule, whereas the

Relative Cost Impact Analysis indicates

that most of those same small entities

may be able, over time, to find ways to

offset the incremental costs of

compliance. As the result of information

ascertained from both of these analyses,

there is uncertainty as to whether all of

the small entities would be able to

afford the additional costs of doing

business due to compliance with this

NPRM. Because of this uncertainty, the

FAA solicits comments from screening

companies (especially from small

companies with less than 1,500

employees) as to what extent small

companies subject to this NPRM would

be able to afford the costs of

compliance. The FAA requests that all

comments be accompanied with clear

supporting data.

Disproportionality Analysis

Due in large part to the paucity of data

from which to work, the FAA can not

draw any firm conclusions concerning

any of the 38 small entities would be

disadvantaged relative to large screening

companies due solely to

disproportionate cost impacts. The FAA

compared the annualized costs of the 5

largest screening companies to an

average of annualized costs of the small

entities, and found them to be, on

average, 12 times as large. This

comparison was basically in line with

the comparison of the total operating

revenues of the largest screening

companies to the average of the small

entities; these average, 11 times as large

for both 1996 and 1997. However, this

comparison was double the comparison

of current assets of the largest screening

companies to the average of the small

entities for these same 2 years; the FAA

found them to be, on average, 6 times

as large. This analysis suggests that large

entities may be disadvantaged relative

to small screening companies due to

disproportionate cost impact. The FAA

requests that both large and small

screening companies provide additional

financial data to assist the FAA in

determining any financial

disproportionality. As always, the FAA

requests that all submitted data be

accompanied with clear documentation.

Competitiveness Analysis

This proposed rule would not impose

significant costs on any small screening

companies. However, due to the

financial problems that certain air

carriers are having, there may be some

impact on the relative competitive

positions of these carriers in markets

served by them. The FAA solicits

comments on this issue from all

screening companies and small

screening companies in particular. The

FAA requests that supporting data on

markets and cost be provided with the

comments.

Business Closure Analysis

The FAA is unable to determine with

certainty the extent to which those

small entities that would be

significantly impacted by this proposed

rule would have to close their

operations. However, the profitability

information and the affordability

analysis can be indicators in business

closures.

In determining whether any of the 38

small entities would close business as

the result of compliance with this

proposed rule, one question must be

answered: ‘‘Would the cost of

compliance be so great as to impair an

entity’s ability to remain in business?’’

Of the information that the FAA has on

19 of these entities, 4 already are in

serious financial difficulty. To what

extent the proposed rule makes the

difference in whether these entities

remain in business is difficult to

answer. The FAA believes that the

likelihood of business closure for any of

these small screening companies, as a

result of this proposed rule, is low to

moderate. However, since there is

uncertainty associated with whether

some of the small entities would go out

of business as the result of the

compliance costs of this proposed rule,

the FAA solicits comments from the

aviation community as to the likelihood

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 597

of this occurrence. As always, the FAA

requests that all comments be

accompanied with clear supporting

data.

Alternatives

The FAA considered alternatives to

the proposed rule for small screening

companies. These alternatives have

compliance costs that range from $12.73

million to $13.10 million.

Alternative 1.—Status Quo. Under

this alternative, the FAA would exempt

small screening companies from all

requirements of this proposed rule.

Currently, the FAA does not regulate

screening companies directly.

Continuing with this policy would be

the least costly course of action but also

would be less safe than the proposed

rule and would not fulfill the

Congressional mandate. The FAA

believes that the threat to civil aviation

within the United States has increased

and that further rulemaking is

necessary. Thus, this alternative is not

considered to be acceptable because it

permits continuation of an unacceptable

level of risk to U.S. airline passengers.

Alternative 2.—The FAA considered

doing away with direct air carrier test

monitoring requirements for smaller

screening companies.

The proposal would require each

screening company to ensure that each

test is monitored by an employee of the

carrier for which it screens. The

screening company would be

responsible for informing the applicable

carrier(s) that it plans to administer a

test to screener trainees, and the

applicable carrier(s) would be

responsible for providing test monitors

upon request. Under this alternative,

small screening companies would not

have to request a testing monitor. This

alternative would result in cost savings

to all small screening companies. These

companies would no longer need to

write letters to the applicable direct air

carrier requesting the employees to

monitor the tests. Over 10 years, this

alternative would save all small

screening companies $357,800 (net

present value, $251,300), resulting in

total compliance costs of $12.74 million

(net present value, $8.85 million).

The FAA believes that this alternative

would not enhance security. Because air

carriers are ultimately responsible for

ensuring the safe and proper screening

of persons and property, the FAA

believes that it is important to ensure air

carrier involvement with critical aspects

of this rulemaking. Removing this

monitoring requirement would strongly

diminish the emphasis and importance

that this proposed rule places on air

carrier oversight. In addition, retaining

the monitoring requirement helps to

support the concept of a balance of

responsibilities between screening

companies and the air carriers for which

they screen. The FAA believes that

potential cost savings would be

outweighed by a reduction in security.

Alternative 3.—The FAA considered

not requiring that CSS’s and shift

supervisors of smaller screening

companies complete leadership

training.

The proposal would require persons

with supervisory screening duties to

have initial and recurrent training that

includes leadership and management

subjects. All CSS’s and shift supervisors

would be required to take annual classes

in leadership training, which would be

a new requirement. Under this

alternative, small screening companies

would not be required to have their

CSS’s and shift supervisors take this

training. This alternative would result

in cost savings to all small screening

companies. These companies would no

longer need to pay to have their

personnel take these classes or pay for

leadership training instructors. Over 10

years, this alternative would save all

small screening companies $292,900

(net present value, $205,000), resulting

in total compliance costs of $12.80

million (net present value, $8.89

million).

The FAA believes that this alternative

would harm security. Security is best

served when competent, qualified

leadership exists at all locations,

whether large or small, busy or not

busy. There are certain core skills that

CSS’s and shift supervisors need in

order to perform their responsibilities

effectively. Hence, under this

alternative, there would not be

consistency of leadership at the

different screening checkpoints. The

FAA believes that potential cost savings

would be outweighed by a reduction in

security.

Alternative 4.—The FAA considered

not requiring that smaller screening

companies obtain air carrier approval

before submitting their security program

amendments to the FAA.

The proposal would require screening

companies to include in any proposed

amendment packages that they send to

the FAA a statements that all carriers for

which they screen have been advised of

the proposed amendments and agree to

them. Hence, each screening company

would have to send its proposed

amendment to every carrier for which it

screens and respond to any changes that

that carrier proposes. This alternative

would result in cost savings to all small

screening companies. These screening

companies would no longer have to

send copies of their proposed

amendments to their carriers or respond

to their carrier’s modifications. Over 10

years, this alternative would save all

small screening companies $367,200

(net present value, $258,400), resulting

in total compliance costs of $12.73

million (net present value, $8.84

million).

The FAA believes that this alternative

would harm security. Air carriers are

responsible by statute for screening and

would be held responsible along with

the screening companies for complying

with part 111 and the SSSP. Under this

alternative, all carriers would not be

informed of all screening-related

changes to the applicable SSSP’s. The

FAA would have a difficult time

holding carriers accountable for changes

of which they were not made aware; this

alternative would ensure that some air

carriers are not made aware of all

changes. The FAA believes that

potential cost savings would be

outweighed by a reduction in security.

Alternative 5.—The Proposed Rule

This alternative represents the

proposed rule for screening companies.

Under this alternative, small screening

companies would be subject to all

aspects of this proposed rulemaking.

The cost of compliance expected to be

incurred by the 38 small entities subject

to the requirements of the proposed rule

is estimated to be $13.10 million (net

present value, $9.10 million) over the

next 10 years. This alternative is

preferred, because the FAA believes that

it has the best balance between costs

and benefits for all screening companies

while enhancing aviation safety and

security (in the form of risk reduction)

for the flying public.

VIII.C. International Trade Impact

Statement

In accordance with the Office of

Management and Budget memorandum

dated March 1983, Federal agencies

engaged in rulemaking activities are

required to assess the effects of

regulatory changes on international

trade. Because domestic and

international air carriers use screeners,

this proposed rule change would have

an equal effect on both.

VIII.D. Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (the Act), enacted as

Public Law 104–4 on March 22, 1995,

requires each Federal agency, to the

extent permitted by law, to prepare a

written assessment of the effects of any

Federal mandate in a proposed or final

agency rule that may result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

598 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

private sector, of $100 million or more

(adjusted annually for inflation) in any

one year. Section 204(a) of the Act, 2

U.S.C. 1534(a), requires the Federal

agency to develop an effective process

to permit timely input by elected

officers (or their designees) of State,

local, and tribal governments on a

proposed ‘‘significant intergovernmental

mandate.’’ A ‘‘significant

intergovernmental mandate’’ under the

Act is any provision in a Federal agency

regulation that would impose an

enforceable duty upon State, local, and

tribal governments, in the aggregate, of

$100 million (adjusted annually for

inflation) in any 1 year. Section 203 of

the Act, 2 U.S.C. 1533, which

supplements section 204(a), provides

that before establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall have developed a plan that,

among other things, provides for notice

to potentially affected small

governments, if any, and for a

meaningful and timely opportunity to

provide input in the development of

regulatory proposals.

This proposed rule does not contain

any Federal intergovernmental

mandates or private sector mandates.

VIII.E. Federalism Implications

The FAA has analyzed this proposed

rule under the principles and criteria of

Executive Order 13132, Federalism. The

FAA has 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. Therefore,

the FAA has determined that this final

rule does not have federalism

implications.

List of Subjects

14 CFR Part 108

Air carriers, Aircraft, Airmen,

Airports, Arms and munitions,

Explosives, Law enforcement officers,

Reporting and recordkeeping

requirements, Security measures, Xrays.

14 CFR Part 109

Administrative practice and

procedure, Air carriers, Aircraft, Freight

forwarders, Reporting and

recordkeeping requirements, Security

measures.

14 CFR Part 111

Administrative practice and

procedure, Air carriers, Aircraft,

Certification requirements, Foreign air

carriers, Indirect air carriers,

Performance standards, Reporting and

recordkeeping requirements, Screening

companies, Security measures.

14 CFR Part 129

Administrative practice and

procedure, Air carriers, Aircraft,

Aviation safety, Reporting and

recordkeeping requirements, Security

measures, Smoking.

14 CFR Part 191

Air transportation, Security measures.

The Proposed Amendment

For the reasons stated in the

preamble, the Federal Aviation

Administration proposes to amend 14

CFR chapter I as follows:

PART 108—AIRCRAFT OPERATOR

SECURITY

1. The heading for part 108, proposed

at 62 FR 41749, continues to read as set

forth above.

1a. The authority citation for part 108,

proposed at 62 FR 41749, continues to

read as follows:

Authority: 49 U.S.C. 106(g); 5103, 40113,

40119, 44701–44702, 44705, 44901–44905,

44907, 44913–44914, 44932, 44935–44936,

46105.

2. Section 108.5, proposed at 62 FR

41750, is amended by revising

paragraphs (a) and (b) to read as follows:

§ 108.5 Inspection authority.

(a) Each air carrier shall allow the

Administrator, including FAA special

agents to make any inspections or tests

at any time or place to determine

compliance of an airport operator, air

carrier, foreign air carrier, screening

company, or other airport tenant with—

(1) This part;

(2) Part 111 of this chapter;

(3) The air carrier security program;

(4) Applicable screening company

security program(s);

(5) 49 CFR part 175, which relates to

the carriage of hazardous materials by

aircraft; and

(6) 49 U.S.C. Subtitle VII, as amended.

(b) At the request of the

Administrator, each air carrier shall

provide evidence of compliance with

this part, part 111 of this chapter, its air

carrier security program, and its

screening company security program(s).

* * * * *

3. Section 108.103, proposed at 62 FR

41751, is amended by adding new

paragraphs (b)(14) and (b)(15) to read as

follows:

§ 108.103 Form, content, and availability.

* * * * *

(b) * * *

(14) A description of how the air

carrier will provide oversight to each

screening company performing

screening on its behalf.

(15) A description of how the air

carrier will evaluate and test screening

performance.

* * * * *

4. Section 108.201, proposed at 62 FR

41752, is amended by revising

paragraph (a); removing paragraph (g);

redesignating paragraph (h) as new

paragraph (g) and revising it; and by

adding new paragraphs (h), (i), (j), (k),

(l), (m), and (n) to read as follows:

§ 108.201 Screening of persons and

property, and acceptance of cargo.

(a) Each air carrier required to

conduct screening under a security

program shall use the procedures

included and the facilities and

equipment described in its approved

security program and its screening

company approved security program(s)

to inspect each person entering a sterile

area and to inspect each person’s

accessible property.

* * * * *

(g) Each air carrier required to

conduct screening under a security

program shall use the procedures

included and the facilities and

equipment described in its approved

security program and its screening

company approved security program(s)

to prevent the carriage of explosives or

incendiaries onboard a passenger

aircraft.

(h) Except as provided in § 111.109(k)

of this chapter each air carrier required

to conduct screening of persons and

property at locations within the United

States under a security program shall

either hold a screening company

certificate issued under part 111 of this

chapter or shall use another screening

company certificated under part 111 of

this chapter to inspect persons or

property for the presence of any

unauthorized explosive, incendiary, or

deadly or dangerous weapon. FAAcertified canine teams are not required

to be operated by certificated screening

companies.

(i) Each air carrier shall ensure that

each screening company performing

screening on its behalf conducts such

screening in accordance with part 111 of

this chapter, the screening company’s

security program, and the screening

company’s operations specifications.

(j) Each air carrier required to conduct

screening under this part shall provide

oversight to each screening company

performing screening on its behalf as

specified in the air carrier’s security

program.

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 599

(k) Each air carrier required to

conduct screening under a security

program shall:

(1) Maintain at least one complete

copy of each of its screening companies’

security programs at its principal

business office;

(2) Have available complete copies or

the pertinent portions of its screening

companies’ security programs or

appropriate implementing instructions

at each location where the screening

companies conduct screening for the air

carrier;

(3) Make copies of its screening

companies’ security programs available

for inspection by an FAA special agent

upon request;

(4) Restrict the distribution,

disclosure, and availability of

information contained in its screening

companies’ security programs to

persons with a need to know as

described in part 191 of this chapter;

and

(5) Refer requests for such information

by other persons to the Administrator.

(l) Each air carrier required by the

Administrator to implement additional

security measures to maintain system

performance shall notify the public by

posting signs at affected locations as

specified in its security program.

(m) At screening locations outside the

United States at which an air carrier has

operational control over screening, the

air carrier shall screen as follows:

(1) The air carrier shall carry out and

comply with all relevant sections of part

111 of this chapter, except for those

requirements related to screening

company certification, to the extent

allowable by local law.

(2) The air carrier may use screeners

who do not meet the requirements of

§ 111.205(a)(3) of this chapter provided

that at least one representative of the air

carrier who has the ability to read and

speak English functionally is present

while the air carrier’s passengers are

undergoing security screening.

(3) In the event that an air carrier is

unable to implement any of the

requirements for screening, the air

carrier shall notify the Administrator of

those air carrier stations or screening

locations so affected.

(n) The air carrier shall notify the

Administrator of any screening

locations outside the United States at

which it does have operational control.

5. Section 108.203, proposed at 62 FR

41752, is revised to read as follows:

§ 108.203 Use of metal detection devices.

(a) No air carrier may use a metal

detection device to inspect passengers,

accessible property, or checked baggage

unless specifically authorized under a

security program required under this

part. No air carrier may use such a

device contrary to its approved security

program or its screening companies’

approved program(s).

(b) Metal detection devices shall meet

the calibration standards established by

the Administrator in the screening

company approved security program(s).

6. Section 108.205, proposed at 62 FR

41753, is amended by revising

paragraph (a) introductory text,

removing paragraph (a)(2), redesignating

paragraph (a)(3) as new paragraph (a)(2)

and revising it, and revising paragraph

(h) to read as follows:

§ 108.205 Use of X-ray systems.

(a) No air carrier may use any X-ray

system within the United States or

under the air carrier’s operational

control outside the United States to

inspect accessible property or checked

articles unless specifically authorized

under a security program required by

this part. No air carrier may use such a

system in a manner contrary to its

approved security program or its

screening company approved security

program(s). The Administrator

authorizes an air carrier to use X-ray

systems for inspecting accessible

property or checked articles under an

approved security program if the air

carrier shows that:

* * * * *

(2) The system meets the imaging

requirements set forth in the approved

screening company’s standard security

program.

* * * * *

(h) Unless otherwise authorized by

the Administrator, each air carrier shall

ensure that each X-ray system that it

uses has a functioning threat image

projection system that meets the

standards set forth in its security

program.

(1) Automated X-ray threat image

projection data will be collected as

specified in the air carrier’s security

program and in the responsible

screening company’s security program.

(2) The air carrier shall make X-ray

threat image projection data available to

the FAA upon request and shall allow

the FAA to download threat image

projection data upon request.

7. Section 108.207, proposed at 62 FR

41753, is revised to read as follows:

§ 108.207 Use of explosives detection

systems.

(a) When the Administrator shall

require by an amendment under

§ 108.105, each air carrier required to

conduct screening under a security

program shall use an explosives

detection system that has been approved

by the Administrator to screen checked

baggage on each international flight in

accordance with its security program

and its screening companies’ security

programs.

(b) Unless otherwise authorized by

the Administrator, each air carrier shall

ensure that each explosives detection

system that it uses has a functioning

threat image projection system that

meets the standards set forth in its

security program.

(1) Automated explosives detection

system threat image projection data will

be collected as specified in the air

carrier’s security program and in the

responsible screening company’s

security program.

(2) The air carrier shall make

explosives detection system threat

image projection data available to the

FAA upon request and shall allow the

FAA to download threat image

projection data upon request.

§ 108.209 [Removed and Reserved]

8. Section 108.209, proposed at 62 FR

41753, is removed and reserved.

9. Section 108.227, proposed at 62 FR

41756, is amended by revising

paragraph (b) to read as follows:

§ 108.227 Training and knowledge of

persons with security-related duties.

* * * * *

(b) Each air carrier shall ensure that

individuals performing security-related

functions for the air carrier have

knowledge of the provisions of this part,

applicable security directives and

information circulars promulgated

pursuant to § 108.305, the approved

airport security program, the air carrier’s

approved security program, and the

screening company approved security

program(s) to the extent that such

individuals need to know in order to

perform their duties.

* * * * *

10. A new § 108.229 is added to

subpart C, proposed at 62 FR 41752, to

read as follows:

§ 108.229 Monitoring of screener training

tests.

Each air carrier shall monitor each

screener training test required under

§ 111.215(a) and (c) of this chapter for

all screening companies that conduct

screening on its behalf in accordance

with its security program. Each test

monitor shall meet the following

qualifications:

(a) Be an air carrier employee who is

not a contractor, instructor, screener,

screener-in-charge, checkpoint security

supervisor, or other screening company

supervisor, unless otherwise authorized

by the Administrator.

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(b) Be familiar with the testing and

grading procedures contained in the

screening company’s security program.

(c) Meet other qualifications set forth

in the screening company’s security

program.

11. Amend § 108.301, proposed at 62

FR 41757, by revising paragraphs (b)(1)

and (b)(2) to read as follows:

§ 108.301 Security Coordinators.

* * * * *

(b) * * *

(1) A review of all security-related

functions for effectiveness and

compliance with this part, the air

carrier’s approved security program,

part 111 of this chapter, its screening

company approved security program(s),

and applicable security directives.

(2) Immediate initiation of corrective

action for each instance of

noncompliance with this part, the air

carrier’s approved security program,

part 111 of this chapter, its screening

company approved security program(s),

and applicable security directives. At

foreign airports where such security

measures are provided by agencies or

contractors of host governments, the air

carriers shall notify the Administrator

for assistance in resolving

noncompliance issues.

* * * * *

12. Revise part 109 to read as follows:

PART 109—INDIRECT AIR CARRIER

SECURITY

Subpart A—General

Sec.

109.1 Applicability.

109.3 Definitions.

109.5 Inspection authority.

109.7 Falsification.

Subpart B—Security Program

109.101 Adoption and implementation

109.103 Form, content, and availability.

109.105 Approval and amendments.

Subpart C—Screening and Operations

109.201 Screening of cargo

109.203 Screening certificate, performance,

and oversight.

109.205 Monitoring of screener training

tests.

109.207 Use of X-ray systems.

Authority: 49 U.S.C. 106(g), 5103, 40113,

40119, 44701–44702, 44705, 44901–44905,

44907, 44913–44914, 44932, 44935–44936,

46105.

Subpart A—General

§ 109.1 Applicability.

This part prescribes aviation security

rules governing each indirect air carrier

(IAC) engaged indirectly in the air

transportation of property.

§ 109.3 Definitions.

Terms defined in parts 107, 108, 111,

and 129 of this chapter apply to this

part. For purposes of this part, parts

107, 108, 111, and 129 of this chapter,

and security programs required by these

parts, the following definition also

applies:

Indirect air carrier means any person

or entity within the United States not in

possession of an FAA air carrier

operating certificate, that undertakes to

engage indirectly in air transportation of

property, and uses for all or any part of

such transportation the services of a

passenger air carrier. This does not

include the U.S. Postal Service (USPS)

or its representative while acting on the

behalf of the USPS.

§ 109.5 Inspection authority.

(a) Each indirect air carrier shall allow

the Administrator, including FAA

special agents to make any inspections

or tests at any time or place to

determine compliance of the indirect air

carrier with:

(1) This part;

(2) Part 111 of this chapter;

(3) The indirect air carrier security

program;

(4) Its screening companies’ security

programs; and

(5) 49 CFR parts 100–199, which

relate to handling and carrying

hazardous materials.

(b) At the request of the

Administrator, each indirect air carrier

shall provide evidence of compliance

with this part, part 111 of this chapter,

its indirect air carrier security program,

and its screening company security

program(s).

§ 109.7 Falsification.

No person shall make or cause to be

made any of the following:

(a) Any fraudulent or intentionally

false statement in any application for

any security program or any amendment

thereto under this part.

(b) Any fraudulent or intentionally

false entry in any record or report that

is kept, made, or used to show

compliance with this part or to exercise

any privileges under this part.

(c) Any reproduction or alteration for

fraudulent purpose of any report,

record, or security program issued

under this part.

Subpart B—Security Program

§ 109.101 Adoption and implementation.

Each indirect air carrier shall adopt

and carry out a security program that

meets the requirements of § 109.103.

§ 109.103 Form, content, and availability.

(a) The security program required

under § 109.101 shall—

(1) Be designed to detect and prevent

the introduction of any unauthorized

explosive or incendiary into cargo

intended for carriage by air;

(2) Provide that upon receipt of an

approved security program or security

program amendment from the FAA, the

indirect air carrier shall acknowledge

receipt of the approved security

program or amendment to the Assistant

Administrator in writing and signed by

the indirect air carrier or any person

delegated authority in this matter within

72 hours;

(3) Include the items listed in

paragraph (b) of this section as required

by § 109.101;

(4) Be in writing and signed by the

indirect air carrier or any person

delegated authority in this matter; and

(5) Be approved by the Administrator.

(b) The security program shall

include—

(1) A system of security safeguards

acceptable to the Administrator;

(2) The procedures and descriptions

of the facilities and equipment used to

perform screening functions specified in

§ 109.201;

(3) The procedures and descriptions

of the equipment used to comply with

the requirements of § 109.207 regarding

the use of X-ray systems should the

indirect air carrier elect to perform

screening functions;

(4) A description of how the indirect

carrier will provide oversight to each

screening company performing

screening on its behalf should the

indirect air carrier elect to perform

screening functions; and

(5) A description of how the indirect

air carrier will evaluate and test the

performance of screening should the

indirect air carrier elect to perform

screening functions.

(c) Each indirect air carrier having an

approved security program shall—

(1) Maintain at least one complete

copy of its security program at its

principal business office;

(2) Have available a complete copy or

the pertinent portions of its approved

security program or appropriate

implementing instructions at each office

where package cargo is accepted;

(3) Make a copy of its approved

security program available for

inspection upon the request of an FAA

special agent;

(4) Restrict the distribution,

disclosure, and availability of

information contained in its security

program to persons with an operational

need to know as described in part 191

of this chapter; and

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(5) Refer requests for such information

by other persons to the Administrator.

§ 109.105 Approval and amendments.

(a) Approval of Security Program.

Unless otherwise authorized by the

Assistant Administrator, each indirect

air carrier required to have a security

program under this part shall submit its

proposed security program to the

Assistant Administrator for approval at

least 30 days before the date of intended

operations. Such request shall be

processed as follows:

(1) Within 30 days after receiving the

proposed indirect air carrier security

program, the Assistant Administrator

will either approve the program or give

the indirect air carrier written notice to

modify the program to comply with the

applicable requirements of this part.

(2) Within 30 days of receiving a

notice to modify, the indirect air carrier

may either submit a modified security

program to the Assistant Administrator

for approval, or petition the

Administrator to reconsider the notice

to modify. A petition for reconsideration

shall be filed with the Assistant

Administrator. Except in the case of an

emergency requiring immediate action

in the interest of safety, the filing of the

petition stays the notice pending a

decision by the Administrator.

(3) Upon receipt of a petition for

reconsideration, the Assistant

Administrator will either amend or

withdraw the notice or transmit the

petition together with any pertinent

information to the Administrator for

reconsideration. The Administrator will

dispose of the petition within 30 days

of receipt by either directing the

Assistant Administrator to withdraw or

amend the notice to modify or by

affirming the notice to modify.

(b) Amendment requested by an

indirect air carrier. An indirect air

carrier may submit a request to the

Assistant Administrator to amend its

approved security program as follows:

(1) The application shall be filed with

the Assistant Administrator at least 30

days before the date that it proposes for

the amendment to become effective

unless a shorter period is allowed by the

Assistant Administrator.

(2) Within 15 days after receiving a

proposed amendment, the Assistant

Administrator will either approve or

deny the request to amend in writing.

(3) An amendment to an indirect air

carrier security program may be

approved if the Assistant Administrator

determines that safety and the public

interest will allow it and if the proposed

amendment provides the level of

security required under this part.

(4) Within 30 days after receiving a

denial, the indirect air carrier may

petition the Administrator to reconsider

the denial.

(5) Upon receipt of a petition for

reconsideration, the Assistant

Administrator will either approve the

request to amend or will transmit the

petition together with any pertinent

information to the Administrator for

reconsideration. The Administrator will

dispose of the petition within 30 days

of receipt by either directing the

Assistant Administrator to approve the

amendment or by affirming the denial.

(c) Amendment by the FAA. If safety

and the public interest require an

amendment, the Assistant

Administrator may amend an approved

security program as follows:

(1) The Assistant Administrator will

notify the indirect air carrier in writing

of the proposed amendment, fixing a

period of not less than 30 days within

which the indirect air carrier may

submit written information, views, and

arguments on the amendment.

(2) After considering all relevant

material, the Assistant Administrator

will notify the indirect air carrier of any

amendment adopted or will rescind the

notice. If the amendment is adopted, it

will become effective not less than 30

days after the indirect air carrier

receives the notice of amendment unless

the indirect air carrier petitions the

Administrator to reconsider no later

than 15 days before the effective date of

the amendment. The indirect air carrier

shall send the petition for

reconsideration to the Assistant

Administrator. A timely petition for

reconsideration will stay the effective

date of the amendment.

(3) Upon receipt of a petition for

reconsideration, the Assistant

Administrator will either amend or

withdraw the notice or will transmit the

petition together with any pertinent

information to the Administrator for

reconsideration. The Administrator will

dispose of the petition within 30 days

of receipt by either directing the

Assistant Administrator to withdraw or

amend the notice or by affirming the

amendment.

(d) Emergency amendments. If the

Assistant Administrator finds that there

is an emergency requiring immediate

action with respect to safety in air

transportation or in air commerce that

makes procedures in this section

contrary to the public interest, the

Assistant Administrator may issue an

amendment that will become effective

without stay on the date that the

indirect air carrier receives notice of it.

In such a case, the Assistant

Administrator shall incorporate in the

notice a brief statement of the reasons

and findings for the amendment to be

adopted. The indirect air carrier may

file a petition for reconsideration under

paragraph (c) of this section; however,

this will not stay the effectiveness of the

emergency amendment.

Subpart C—Screening and Operations

§ 109.201 Screening of cargo.

(a) Each indirect air carrier that elects

to conduct screening under a security

program shall use the procedures

included and the facilities and

equipment described in its approved

security program and its screening

company approved security program(s)

to inspect cargo and prevent the carriage

of explosives or incendiaries onboard

any aircraft.

(b) Each indirect air carrier that elects

to conduct screening under a security

program shall detect and prevent the

carriage of any explosive or incendiary

in cargo aboard aircraft and into sterile

areas.

§ 109.203 Screening certificate,

performance, and oversight.

(a) Except as provided in § 111.109(k)

of this chapter, each indirect air carrier

that conducts screening of cargo for

locations within the United States under

a security program shall either hold a

screening company certificate issued

under part 111 of this chapter or use

another screening company certificated

under part 111 of this chapter to inspect

property for the presence of any

unauthorized explosive or incendiary.

FAA-certified canine teams are not

required to be operated by certificated

screening companies.

(b) Each indirect air carrier shall

ensure that each screening company

performing screening on the indirect air

carrier’s behalf conducts such screening

in accordance with part 111 of this

chapter, the screening company’s

security program, and the screening

company’s operations specifications.

(c) Each indirect air carrier that

conducts screening under this part shall

provide oversight to each screening

company performing screening on

behalf of the indirect air carrier as

specified in the indirect air carrier’s

security program.

(d) Each indirect air carrier required

to conduct screening under a security

program shall:

(1) Maintain at least one complete

copy of each of its screening companies’

security programs at its principal

business office;

(2) Have available complete copies or

the pertinent portions of its screening

companies’ security programs or

602 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

appropriate implementing instructions

at each location where the screening

companies conduct screening for the

indirect air carrier;

(3) Make copies of its screening

companies’ security programs available

for inspection by an FAA special agent

upon request;

(4) Restrict the distribution,

disclosure, and availability of

information contained in its screening

companies’ security programs to

persons with a need to know as

described in part 191 of this chapter;

and

(5) Refer requests for such information

by other persons to the Administrator.

§ 109.205 Monitoring of screener training

tests.

Unless otherwise authorized by the

Administrator, each indirect air carrier

shall monitor each screener training test

required under § 111.215(a) and (c) of

this chapter for all screening companies

that conduct screening on its behalf in

accordance with its security program.

Each test monitor shall meet the

following qualifications:

(a) Be an indirect air carrier employee

who is not a contractor, instructor,

screener, screener-in-charge, checkpoint

security supervisor, or other screening

company supervisor, unless otherwise

authorized by the Administrator.

(b) Be familiar with the testing and

grading procedures contained in the

screening company’s security program.

(c) Meet other qualifications set forth

in the screening company’s security

program.

§ 109.207 Use of X-ray systems.

(a) No indirect air carrier may use any

X-ray system to inspect cargo unless

specifically authorized under a security

program required by this part. No

indirect air carrier may use such a

system in a manner contrary to its

screening company’s approved security

program. The Administrator authorizes

an indirect air carrier to use X-ray

systems for inspecting cargo under an

approved screening security program if

the indirect air carrier shows that—

(1) The system meets the standards for

cabinet X-ray systems designed

primarily for the inspection of baggage

issued by the Food and Drug

Administration (FDA) and published in

21 CFR 1020.40; and

(2) The system meets the imaging

requirements set forth in the approved

screening security program.

(b) No indirect air carrier may use any

X-ray system unless a radiation survey

is conducted within the preceding 12

calendar months which shows that the

system meets the applicable

performance standards in 21 CFR

1020.40.

(c) No indirect air carrier may use any

X-ray system after the system has been

installed at a screening location or after

the system has been moved unless a

radiation survey is conducted which

shows that the system meets the

applicable performance standards in 21

CFR 1020.40. A radiation survey is not

required for an X-ray system that is

designed and constructed as a mobile

unit and the indirect air carrier shows

that it can be moved without altering its

performance.

(d) No indirect air carrier may use any

X-ray system that is not in full

compliance with any defect notice or

modification order issued for that

system by the FDA unless the FDA has

advised the FAA that the defect or

failure to comply does not create a

significant risk of injury, including

genetic injury, to any person.

(e) No indirect air carrier may use any

X-ray system to inspect cargo unless a

sign is posted in a conspicuous place at

the receiving area or written notification

is provided to inform individuals that

items are being inspected by an X-ray

and advise them to remove all X-ray,

scientific, and high-speed film from

their cargo before inspection. This sign

or written notification also shall advise

individuals that they may request that

inspections be made of their

photographic equipment and film

packages without exposure to X-ray

systems. If an X-ray system exposes any

cargo to more than 1 milliroentgen

during inspection, the indirect air

carrier shall post a sign that advises

individuals to remove film of all kinds

from their cargo before inspection.

(f) Each indirect air carrier shall

maintain at least one copy of the results

of the most recent radiation survey

conducted under paragraph (b) or (c) of

this section and shall make it available

for inspection upon request by the

Administrator at each of the following

locations:

(1) The indirect air carrier’s principal

business office.

(2) The place where the X-ray system

is in operation.

(g) The American Society for Testing

and Materials Standard F792–88,

‘‘Design and Use of Ionizing Radiation

Equipment for the Detection of Items

Prohibited in Controlled Access Areas,’’

is incorporated by reference in this

section and made a part of this section

pursuant to 5 U.S.C. 552(a)(1). All

persons affected by this section may

obtain copies of the standard from the

American Society for Testing and

Materials, 1916 Race Street,

Philadelphia, Pennsylvania 19103.

(h) Unless otherwise authorized by

the Administrator, each indirect air

carrier shall ensure that each X-ray

system that it uses has a functioning

threat image projection system that

meets the standards set forth in its

security program.

(1) Automated X-ray threat image

projection data will be collected as

specified in the indirect air carrier

security program and in the responsible

screening company’s security program.

(2) The indirect air carrier shall make

X-ray threat image projection data

available to the FAA upon request and

shall allow the FAA to download threat

image projection data upon request.

13. A new part 111 is added to

subchapter F to read as follows:

PART 111—SCREENING COMPANY

SECURITY

Subpart A—General

Sec.

111.1 Applicability.

111.3 Definitions.

111.5 Inspection authority.

111.7 Falsification.

111.9 Prohibition against interference with

screening personnel.

Subpart B—Security Program, Certificate,

and Operations Specifications

111.101 Performance of screening.

111.103 Security program: Adoption and

implementation.

111.105 Security program: Form, content,

and availability.

111.107 Security program: Approval and

amendments.

111.109 Screening company certificate.

111.111 Operations specifications:

Adoption and implementation.

111.113 Operations specifications: Form,

content, and availability.

111.115 Operations specifications:

Approval, amendments, and limitations.

111.117 Oversight by air carriers, foreign air

carriers, or indirect air carriers.

111.119 Business office.

Subpart C—Operations

111.201 Screening of persons and property

and acceptance of cargo.

111.203 Use of screening equipment.

111.205 Employment standards for

screening personnel.

111.207 Disclosure of sensitive security

information.

111.209 Screening company management.

111.211 Screening company instructor

qualifications.

111.213 Training and knowledge of persons

with screening-related duties.

111.215 Training tests: Requirements.

111.217 Training tests: Cheating and other

unauthorized conduct.

111.219 Screener letter of completion of

training.

111.221 Screener and supervisor training

records.

111.223 Automated performance standards.

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 603

Authority: 49 U.S.C. 106(g), 5103, 40113,

40119, 44701–44702, 44705, 44707, 44901–

44905, 44907, 44913–44914, 44932, 44935–

44936, 46105.

Subpart A—General

§ 111.1 Applicability.

This part prescribes the requirements

for the certification and operation of

screening companies. This part applies

to all of the following:

(a) Each screening company that

screens for an air carrier under part 108

of this chapter, for an indirect air carrier

under part 109 of this chapter, or for a

foreign air carrier under part 129 of this

chapter.

(b) All persons conducting screening

within the United States under this part,

part 108, part 109, or part 129 of this

chapter by inspecting persons or

property for the presence of

unauthorized explosives, incendiaries,

or deadly or dangerous weapons.

(c) Each air carrier, foreign air carrier,

and indirect air carrier required to

conduct screening under this chapter.

(d) All persons who interact with

screening personnel during screening.

§ 111.3 Definitions.

Terms defined in parts 107, 108, 109,

and 129 of this chapter apply to this

part. For purposes of this part, parts

107, 108, 109, and 129 of this chapter,

and security programs under these

parts, the following definitions also

apply:

Carrier means an air carrier under part

108 of this chapter, indirect air carrier

under part 109 of this chapter, or foreign

air carrier under part 129 of this

chapter.

Screening company means a carrier or

other entity that inspects persons or

property for the presence of any

unauthorized explosive, incendiary, or

deadly or dangerous weapon, as

required under this part, before entry

into a sterile area or carriage aboard an

aircraft.

Screening company security program

means the security program approved

by the Administrator under this part.

Screening location means each site at

which persons or property are inspected

for the presence of any unauthorized

explosive, incendiary, or deadly or

dangerous weapon.

§ 111.5 Inspection authority.

(a) Each screening company shall

allow the Administrator to make

inspections or tests at any time or place

to determine compliance with all of the

following:

(1) This part.

(2) The screening company’s security

program.

(3) The screening company’s

operations specifications.

(4) Part 108, 109, or 129 of this

chapter, as applicable.

(b) At the request of the

Administrator, a screening company

shall provide evidence of compliance

with this part, its security program, and

its operations specifications.

§ 111.7 Falsification.

No person may make or cause to be

made any of the following:

(a) Any fraudulent or intentionally

false statement in any application for

any security program, certificate, or

operations specifications or any

amendment thereto under this part.

(b) Any fraudulent or intentionally

false entry in any record or report that

is kept, made, or used to show

compliance with this part or to exercise

any privileges under this part.

(c) Any reproduction or alteration for

fraudulent purpose of any report,

record, security program, certificate, or

operations specifications issued under

this part.

§ 111.9 Prohibition against interference

with screening personnel.

No person may interfere with, assault,

threaten, or intimidate screening

personnel in the performance of their

screening duties.

Subpart B—Security Program,

Certificate, and Operations

Specifications

§ 111.101 Performance of screening.

Each screening company shall

conduct screening and screener training

required under this part in compliance

with the requirements of this part, its

approved security program, its approved

operations specifications, and

applicable portions of security

directives and emergency amendments

to security programs issued under part

108, 109, 129 of this chapter, and this

part.

§ 111.103 Security program: Adoption and

implementation.

Each screening company shall adopt

and carry out an FAA-approved security

program that meets the requirements of

§ 111.105.

§ 111.105 Security program: Form,

content, and availability.

(a) A security program required under

§ 111.103 shall:

(1) Provide for the safety of persons

and property traveling on flights

provided by air carriers and/or foreign

air carriers for which the screening

company screens against acts of

criminal violence and air piracy and the

introduction of explosives, incendiaries,

or deadly or dangerous weapons aboard

aircraft.

(2) Provide that upon receipt of an

approved security program or security

program amendment, the screening

company screening performance

coordinator shall acknowledge receipt

of the approved security program or

amendment in a signed, written

statement to the FAA within 72 hours.

(3) Include the items listed in

paragraph (b) of this section as required

by § 111.103.

(4) Be approved by the Administrator.

(b) The security program shall include

all of the following:

(1) The procedures used to perform

screening functions specified in

§ 111.201.

(2) The testing standards and training

guidelines for screening personnel and

instructors.

(3) The performance standards and

operating requirements for threat image

projection systems.

(c) Each screening company having an

approved security program shall:

(1) Maintain at least one complete

copy of the security program at its

principal business office.

(2) Have available a complete copy of

its approved security program at each

airport served.

(3) Make a copy of its approved

security program available for

inspection by an FAA special agent

upon request.

(4) Restrict the distribution,

disclosure, and availability of

information contained in its security

program to persons with a need to know

as described in part 191 of this chapter.

(5) Refer requests for such information

by other persons to the Administrator.

§ 111.107 Security program: Approval and

amendments.

(a) Approval of security program.

Unless otherwise authorized by the

Assistant Administrator, each screening

company required to have a security

program under this part shall within 30

days of receiving the screening standard

security program from the FAA submit

a signed, written statement to the

Assistant Administrator indicating one

of the following: the screening company

will adopt the Screening Standard

Security Program as is, or the screening

company will adopt the Screening

Standard Security Program after making

amendments to it. FAA approval of a

security program will be as follows:

(1) If the screening company chooses

to adopt the Screening Standard

Security Program as is, the granting of

the screening company certificate by the

Assistant Administrator will serve as

604 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

FAA approval of the screening

company’s security program.

(2) If the screening company chooses

to adopt the Screening Standard

Security Program after making

amendments to it or to submit its own

security program that meets the

requirements of § 111.103 to the FAA,

the request will be processed as follows:

(i) Within 30 days after receiving the

screening company’s security program,

the Assistant Administrator will either

approve the program or will give the

screening company written notice to

modify its program to comply with the

applicable requirements of this part.

(ii) Within 30 days of receiving a

notice to modify, the screening

company may either submit a modified

security program to the Assistant

Administrator for approval or petition

the Administrator to reconsider the

notice to modify. A petition for

reconsideration shall be filed with the

Assistant Administrator. Except in the

case of an emergency requiring

immediate action in the interest of

safety, the filing of the petition stays the

notice pending a decision by the

Administrator.

(iii) Upon receipt of a petition for

reconsideration, the Assistant

Administrator will amend or withdraw

the notice or will transmit the petition

together with any pertinent information

to the Administrator for reconsideration.

The Administrator will dispose of the

petition within 30 days of receipt by

directing the Assistant Administrator to

withdraw or amend the notice to modify

or by affirming the notice to modify.

(iv) The granting of a screening

company certificate by the Assistant

Administrator will serve as FAA

approval of a screening company’s

security program.

(b) Amendment requested by a

screening company. A screening

company may submit a request to the

Assistant Administrator to amend its

approved security program as follows:

(1) The application shall be filed with

the Assistant Administrator at least 45

days before the date that it proposes for

the amendment to become effective

unless a shorter period is allowed by the

Assistant Administrator. The screening

company shall include with its

application a statement that all air

carriers for which it screens have been

advised of the proposed amendment

and have no objection to the proposed

amendment. The screening company

shall include the name and phone

number of each individual from each air

carrier who was advised.

(2) Within 30 days after receiving a

proposed amendment, the Assistant

Administrator will either approve or

deny the request to amend in writing.

(3) An amendment to a screening

company security program may be

approved if the Assistant Administrator

determines that safety and the public

interest will allow it and if the proposed

amendment provides the level of

security required under this part.

(4) Within 30 days after receiving a

denial, the screening company may

petition the Administrator to reconsider

the denial.

(5) Upon receipt of a petition for

reconsideration, the Assistant

Administrator will either approve the

request to amend or will transmit the

petition together with any pertinent

information to the Administrator for

reconsideration. The Administrator will

dispose of the petition within 30 days

of receipt by either directing the

Assistant Administrator to approve the

amendment or by affirming the denial.

(c) Amendment by the FAA. If safety

and the public interest require an

amendment, the Assistant

Administrator may amend an approved

security program as follows:

(1) The Assistant Administrator will

notify the screening company and

carrier(s) in writing of the proposed

amendment, fixing a period of not less

than 30 days within which the

screening company and carrier(s) may

submit written information, views, and

arguments on the amendment.

(2) After considering all relevant

material, the Assistant Administrator

will notify the screening company and

carrier(s) of any amendment adopted or

will rescind the notice. If the

amendment is adopted, it will become

effective not less than 30 days after the

screening company and carrier(s)

receive the notice of amendment unless

the screening company or carrier(s)

petition(s) the Administrator to

reconsider no later than 15 days before

the effective date of the amendment.

The screening company or carrier(s)

shall send the petition for

reconsideration to the Assistant

Administrator. A timely petition for

reconsideration stays the effective date

of the amendment.

(3) Upon receipt of a petition for

reconsideration, the Assistant

Administrator will either amend or

withdraw the notice or will transmit the

petition together with any pertinent

information to the Administrator for

reconsideration. The Administrator will

dispose of the petition within 30 days

of receipt by either directing the

Assistant Administrator to withdraw or

amend the notice or by affirming the

amendment.

(d) Emergency amendments.

Notwithstanding paragraphs (a), (b), and

(c) of this section, if the Assistant

Administrator finds that there is an

emergency requiring immediate action

with respect to safety in air

transportation or in air commerce that

makes procedures in this section

contrary to the public interest, the

Assistant Administrator may issue an

amendment that will become effective

without stay on the date that the

screening company and carrier(s)

receive notice of it. In such a case, the

Assistant Administrator shall

incorporate in the notice a brief

statement of the reasons and findings for

the amendment to be adopted. The

screening company or carrier(s) may file

a petition for reconsideration under

paragraph (c) of this section; however,

this will not stay the effectiveness of the

emergency amendment.

§ 111.109 Screening company certificate.

(a) Certificate required. No person

may perform any screening required

under this part or part 108, 109 or 129

of this chapter except under the

authority of and in accordance with the

provisions of a screening company

certificate issued under this part.

(b) Application. An application for a

provisional screening company

certificate, a screening company

certificate, or a screening company

certificate renewal is made in a form

and a manner prescribed by the

Administrator. The application shall

include at a minimum the information

that will be placed on the certificate

under paragraph (f) of this section and

the information that will be contained

in the operations specifications under

§ 111.113(b).

(c) Issuance and renewal. An

applicant for a provisional screening

company certificate, a screening

company certificate, or a screening

company certificate renewal is entitled

to a certificate if the following are met:

(1) The applicant applies for a

certificate as provided in this section

not less than 90 days before—

(i) The applicant intends to begin

screening; or

(ii) The applicant’s current certificate

expires.

(2) For the issuance of a provisional

screening company certificate, the

Administrator finds after investigation

that the applicant is able to meet the

requirements of this part to include

adopting and carrying out an FAAapproved security program and

approved operations specifications.

(3) For the issuance or renewal of a

screening company certificate, the

Administrator determines that the

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applicant has met the requirements of

this part, its screening company security

program, and its approved operations

specifications. The applicant’s failure to

meet the performance standards set

forth in the security program is grounds

for denial or withdrawal of the

screening company certificate.

(4) The issuance of the certificate is

not contrary to the interests of aviation

safety and security.

(5) The applicant has not held a

provisional or a screening company

certificate that was revoked within the

previous year, unless otherwise

authorized by the Administrator.

(d) Provisional certificate. (1) A

person who does not hold a screening

company certificate may be issued a

provisional screening company

certificate.

(2) Unless otherwise authorized by

the Administrator, the holder of a

provisional screening company

certificate may not begin screening at

any screening location unless it notifies

the Administrator 7 days before

beginning such screening.

(3) The Administrator may prescribe

the conditions under which a

provisionally certificated screening

company may operate while it is

beginning screening at a new location.

(e) Screening company certificate. (1)

The holder of a provisional screening

company certificate may be issued a

screening company certificate.

(2) The holder of a screening company

certificate may renew its certificate.

(f) Certificate contents. A screening

company certificate contains the

following information:

(1) The name of the screening

company and any names under which it

will do business as a certificated

screening company.

(2) Certificate issuance date.

(3) Certificate expiration date.

(4) Certificate number.

(5) Such other information as the

Administrator determines necessary.

(g) Duration. (1) Unless sooner

suspended, revoked, or surrendered, a

provisional screening company

certificate will expire at the end of the

12th month after the month in which it

was issued.

(2) Unless sooner suspended, revoked,

surrendered, or expired under

paragraph (g)(3) of this section, a

screening company certificate will

expire at the end of the 60th month after

the month in which it was issued or

renewed.

(3) If a screening company has not

performed screening on behalf of a

carrier during the previous 12 calendar

months, its certificate will be deemed to

have expired, and the company will no

longer be authorized to conduct

screening under this part.

(h) Return of certificate. The holder of

a screening company certificate that is

expired, suspended, or revoked shall

return it to the Administrator within 7

days.

(i) Amendment of certificate. (1) A

screening company shall apply for an

amendment to its screening company

certificate in a form and manner

prescribed by the Administrator if it

intends to change the name of its

screening company, and/or any names

under which it will do business as a

certificated screening company.

(2) The holder of a screening company

certificate requiring amendment shall

return the certificate to the

Administrator within 7 days for

appropriate amendment.

(j) Inspection. A screening company

certificate shall be made available for

inspection upon request by the

Administrator.

(k) Compliance dates. A carrier may

use a company not certificated under

this part to perform screening required

under part 108, part 109, or part 129 of

this chapter if the company performed

required screening for a carrier at any

time on or after [date 1 year before

effective date of final rule] through

[effective date of final rule] and if all of

the following apply:

(1) The company submits an

application as required by paragraph (b)

of this section for a provisional

certificate on or before [date 60 days

after effective date of the final rule].

(2) The FAA has not issued under this

part a denial of a screening company

certificate to the company.

§ 111.111 Operations specifications:

Adoption and implementation.

No screening company may perform

screening under this part unless the

company adopts and complies with

operations specifications that meet the

requirements of this part.

§ 111.113 Operations specifications: Form,

content, and availability.

(a) Operations specifications required

by this part shall—

(1) Be in writing and signed by the

screening company;

(2) Include the items listed in

paragraph (b) of this section; and

(3) Be approved by the Administrator.

(b) Operations specifications required

by this part shall include—

(1) Locations at which the

Administrator has authorized a

company to conduct screening required

under this part, part 108, part 109, or

part 129 of this chapter;

(2) The types of screening that the

Administrator has authorized the

company to perform which include

persons, accessible property, checked

baggage, and cargo;

(3) The equipment and methods of

screening that the Administrator has

authorized the company to operate and

carry out;

(4) The title and name of the person

required by § 111.209(b);

(5) Procedures to notify the

Administrator and any carrier for which

it is performing screening in the event

that the procedures, facilities, or

equipment that it is using are not

adequate to perform screening under

this part;

(6) The curriculum used to train

screeners;

(7) A statement signed by the person

required by § 111.209(b) on behalf of the

company confirming that the

information contained in the operations

specifications is true and correct; and

(8) Any other subjects that the

Administrator deems necessary.

(c) Each screening company having

approved operations specifications

shall—

(1) Maintain at least one complete

copy of the operations specifications at

its principal business office;

(2) Maintain a complete copy or the

pertinent portions of its approved

operations specifications at each airport

where it conducts security training;

(3) Ensure that its operations

specifications are amended so as to

maintain current descriptions of the

screening company and its services,

procedures, and facilities;

(4) Make its operation specifications

available to the Administrator for

inspection upon request;

(5) Provide current operations

specifications to each carrier for which

it screens;

(6) With the exception of information

described in paragraph (b)(1) of this

section, restrict the availability of

information contained in the operations

specifications to those persons with an

operational need to know as provided in

§ 191.5(b) of this chapter; and

(7) Refer requests for such information

by other persons to the Administrator.

§ 111.115 Operations specifications:

Approval, amendments, and limitations.

(a) Each applicant for a provisional

screening company certificate shall

submit its proposed operations

specifications to the Administrator

when applying for a provisional

screening company certificate. After

receiving the proposed operations

specifications, the Administrator will

approve the operations specifications or

will notify the applicant to modify its

operations specifications to comply

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with the applicable requirements of this

part. The applicant may petition the

Administrator to reconsider the notice

to modify. A petition shall be submitted

no later than 15 days from the date that

a notice to modify is issued.

(b) The Administrator may amend

approved operations specifications if it

is determined that safety and the public

interest require the amendment as

follows:

(1) The Administrator notifies the

screening company in writing of the

proposed amendment, fixing a period of

not less than 30 days within which it

may submit written information, views,

and arguments on the amendment.

(2) After considering all relevant

material, the Administrator notifies the

screening company of any amendment

adopted or rescinds the notice. The

amendment will become effective not

less than 30 days after the screening

company certificate holder receives the

notice unless the certificate holder

petitions the Administrator to

reconsider the amendment, in which

case the effective date will be stayed by

the Administrator.

(3) If the Administrator finds that

there is an emergency requiring

immediate action with respect to safety

in air transportation or in air commerce

that makes the procedures in this

paragraph impracticable or contrary to

safety or the public interest, the

Administrator may issue an amendment

that will become effective without stay

on the date that a screening company

receives notice of it. In such a case, the

Administrator will incorporate the

findings and a brief statement of the

reasons for it in the notice of the

amendment to be adopted.

(c) A screening company may submit

a request to the Assistant Administrator

to amend its operations specifications.

The application shall be filed with the

Assistant Administrator at least 30 days

before the date that it proposes for the

amendment to become effective unless a

shorter period is allowed by the

Assistant Administrator. The Assistant

Administrator will approve or deny a

request within 15 days after receiving

the proposed amendment. Within 30

days after receiving from the Assistant

Administrator a notice of refusal to

approve an application for amendment,

the applicant may petition the

Administrator to reconsider the refusal

to amend.

(d) The FAA may limit the specific

locations at which a screening company

may operate if it determines that the

company’s operations are contrary to

the interests of aviation safety and

security.

§ 111.117 Oversight by air carriers, foreign

air carriers, or indirect air carriers.

(a) Each screening company shall

allow any air carrier, foreign air carrier,

or indirect air carrier for which it is

performing screening under part 108,

part 109, or part 129 of this chapter to

do the following:

(1) Inspect the screening company’s

facilities, equipment, and records to

determine the screening company’s

compliance with this part, the screening

company’s security program, and the

screening company’s operations

specifications.

(2) Test the performance of the

screening company using procedures

specified in the applicable security

program(s).

(b) Each screening company holding a

certificate under this part shall provide

a copy of each letter of investigation and

final enforcement action to each carrier

using the screening location where the

alleged violation occurred. The copy

shall be provided to the applicable

carrier’s corporate security officer

within 3 business days of receipt of the

letter of investigation or final

enforcement action.

§ 111.119 Business office.

(a) Each screening company shall

maintain a principal business office

with a mailing address in the name

shown on its certificate.

(b) Each screening company shall

notify the Administrator before

changing the location of its business.

The notice shall be submitted in writing

at least 30 days before the change.

Subpart C—Operations

§ 111.201 Screening of persons and

property and acceptance of cargo.

(a) Each screening company shall use

the procedures included in its approved

security program to:

(1) Inspect each person entering a

sterile area;

(2) Inspect each person’s accessible

property entering a sterile area; and

(3) Prevent or deter the introduction

into a sterile area of any explosive,

incendiary, or deadly or dangerous

weapon on or about each person or the

person’s accessible property.

(b) Each screening company shall

deny entry into a sterile area at a

checkpoint to:

(1) Any person who does not consent

to a search of his or her person in

accordance with the screening system

prescribed in paragraph (a) of this

section; and

(2) Any property of any person who

does not consent to a search or

inspection of that property in

accordance with the screening system

prescribed by paragraph (a) of this

section.

(c) The provisions of paragraph (a) of

this section with respect to firearms and

weapons do not apply to the following:

(1) Law enforcement personnel

required to carry firearms or other

weapons while in the performance of

their duties at airports.

(2) Persons authorized to carry

firearms in accordance with § 108.213,

108.215, 108.217, or 129.27 of this

chapter.

(3) Persons authorized to carry

firearms in sterile areas under FAAapproved or FAA-accepted security

programs.

(d) Each screening company shall staff

the screening locations that it operates

with supervisory and nonsupervisory

personnel in accordance with the

standards specified in its security

program.

(e) Each screening company shall use

the procedures included in its approved

security program to:

(1) Inspect checked baggage, or cargo

presented for inspection by a carrier;

and

(2) Prevent or deter the carriage of

explosives or incendiaries in checked

baggage or cargo onboard passenger

aircraft.

§ 111.203 Use of screening equipment.

(a) Each screening company shall

operate all screening equipment in

accordance with its approved security

program.

(b) The Administrator authorizes a

certificated screening company to use Xray systems for inspecting property

under an approved security program if

the screening company shows that:

(1) A program for initial and recurrent

training of operators of the system that

includes training in radiation safety, the

efficient use of X-ray systems, and the

identification of unauthorized weapons,

explosives, incendiaries, and other

dangerous articles is established.

(2) The system meets the imaging

requirements set forth in its approved

security program.

(c) If requested by individuals, their

photographic equipment and film

packages shall be inspected without

exposure to X-ray or explosives

detection systems.

(d) Each screening company shall

comply with the X-ray duty time

limitations specified in its approved

security program.

§ 111.205 Employment standards for

screening personnel.

(a) No screening company shall use

any person to perform any screening

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function in the United States unless that

person has:

(1) A high school diploma, a General

Equivalency Diploma, or a combination

of education and experience that the

screening company has determined to

have equipped the person to perform

the duties of the screening position.

(2) Basic aptitudes and physical

abilities including color perception,

visual and aural acuity, physical

coordination, and motor skills to the

following standards:

(i) Screeners shall be able to identify

the components that may constitute an

explosive or an incendiary;

(ii) Screeners shall be able to identify

objects that appear to match those items

described in all current security

directives and emergency amendments;

(iii) Screeners operating X-ray and

explosives detection system equipment

shall be able to distinguish on the

equipment monitors the appropriate

imaging standards specified in the

screening company’s approved security

program;

(iv) Screeners operating any screening

equipment shall be able to distinguish

each color displayed on every type of

screening equipment and explain what

each color signifies;

(v) Screeners shall be able to hear and

respond to the spoken voice and to

audible alarms generated by screening

equipment in an active checkpoint or

other screening environment;

(vi) Screeners performing manual

searches or other related operations

shall be able to efficiently and

thoroughly manipulate and handle such

baggage, containers, cargo, and other

objects subject to security processing;

(vii) Screeners performing manual

searches of cargo shall be able to use

tools that allow for opening and closing

boxes, crates, or other common cargo

packaging;

(viii) Screeners performing screening

of cargo shall be able to stop the transfer

of suspect cargo to passenger air

carriers; and

(ix) Screeners performing pat-down or

hand-held metal detector searches of

persons shall have sufficient dexterity

and capability to thoroughly conduct

those procedures over a person’s entire

body.

(3) The ability to read, speak, write,

and understand English well enough to:

(i) Carry out written and oral

instructions regarding the proper

performance of screening duties;

(ii) Read English language

identification media, credentials, airline

tickets, documents, air waybills,

invoices, and labels on items normally

encountered in the screening process;

(iii) Provide direction to and

understand and answer questions from

English-speaking persons undergoing

screening or submitting cargo for

screening; and

(iv) Write incident reports and

statements and log entries into security

records in the English language.

(4) Satisfactorily completed all initial,

recurrent, and appropriate specialized

training required by the screening

company’s security program. Initial and

recurrent training for all screeners shall

include, but is not limited to, the

following:

(i) The conduct of screening of

persons in a courteous and efficient

manner.

(ii) Compliance with the applicable

civil rights laws of the United States.

(5) For persons with supervisory

screening duties, initial and recurrent

training shall include leadership and

management subjects as specified in the

screening company’s security program.

(b) Notwithstanding the provisions of

paragraph (a)(4) of this section, the

screening company may use a person

during the on-the-job portion of training

to perform security functions provided

that the person is closely supervised

and does not make independent

judgments as to whether persons or

property may enter sterile areas or

aircraft or whether cargo may be loaded

aboard aircraft without further

inspection.

(c) No screening company shall use a

person to perform a screening function

after that person has failed an

operational test related to that function

until that person has successfully

completed the remedial training

specified in the screening company’s

security program.

(d) Each air carrier with a ground

security coordinator and each foreign air

carrier and indirect air carrier with a

screening supervisor shall ensure that

that person conducts and documents an

annual evaluation of each person

assigned screening duties. The ground

security coordinator or supervisor may

continue that person’s employment in a

screening capacity only upon

determining that the person:

(1) Has not suffered a significant

diminution of any physical ability

required to perform a screening function

since the last evaluation of those

abilities;

(2) Has a satisfactory record of

performance and attention to duty based

on the standards and requirements in

the approved screening company’s

security program; and

(3) Demonstrates the current

knowledge and skills necessary to

perform screening functions

courteously, vigilantly, and effectively.

§ 111.207 Disclosure of sensitive security

information.

(a) Each screening company shall

ensure that for each screener trainee

who will be required to have an

employment history verification, the

steps in § 107.207(c)(1), (2), (3), and (4),

or § 108.221(c)(1), (2), (3), and (4) of this

chapter have been completed before the

screener trainee receives sensitive

security information as defined in part

191 of this chapter.

(b) If the employee application,

employment verification, or criminal

history record check has disclosed that

the trainee has a history of a

disqualifying crime as provided in

§ 107.207(b)(2) or § 108.221(b)(2) of this

chapter, no sensitive security

information may be provided to that

trainee.

(c) If a criminal history record check

has been requested under

§ 108.221(c)(5) of this chapter, the

trainee may receive sensitive security

information unless and until the results

of the record check disclose a

disqualifying crime.

§ 111.209 Screening company

management.

(a) Each screening company shall

have sufficient qualified management

and technical personnel to ensure the

highest degree of safety in its screening.

(b) Each screening company shall

designate a screening performance

coordinator (SPC) as the primary point

of contact for security-related activities

and communications with the FAA and

carrier.

(1) To serve as a screening

performance coordinator under this

part, a person shall have the following:

(i) Except as provided in paragraph (e)

of this section, at least 1 year of

supervisory or managerial experience

within the last 3 years in a position that

exercised control over any aviation

security screening required under this

part or part 108, 109, or 129 of this

chapter.

(ii) Successfully completed the initial

security screener training course,

including the end of course FAA exam.

(2) Each screening company shall

notify the Administrator within 10 days

of any screening performance

coordinator change or any vacancy.

(c) Each screening performance

coordinator shall to the extent of his or

her responsibilities have a working

knowledge of the following with respect

to the screening company’s operations:

(1) This part.

(2) Part 108, 109, or 129 and part 191

of this chapter.

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(3) The screening company’s security

program.

(4) The screening company’s

operations specifications.

(5) All relevant statutes.

(6) All relevant technical information

and manuals regarding screening

equipment, security directives, advisory

circulars, and information circulars on

aviation security.

(d) Before [date 3 years after effective

date of final rule], the Administrator

may authorize an individual who does

not meet the standard required in

paragraph (b)(1)(i) of this section to

serve as the screening performance

coordinator for screening under part 109

of this chapter.

§ 111.211 Screening company instructor

qualifications.

(a) No screening company shall use

any person as a classroom instructor

unless that person meets the

requirements of this part.

(b) To be eligible for designation as a

security screening instructor for a

course of training, a person shall have

a minimum of 40 hours of actual

experience as a security screener

making independent judgments, unless

otherwise authorized by the

Administrator.

(c) An instructor shall pass the FAA

screener knowledge-based and

performance tests for each type of

screening to be taught and for the

procedures and equipment for which

the instructor will provide training,

unless otherwise authorized by the

Administrator.

(d) An instructor may not be used in

an approved course of training until he

or she has been briefed regarding the

objectives and standards of the course.

(e) This section does not prevent a

screening company’s using guest

speakers or persons in training as

instructors if they are under the direct

supervision of a qualified security

screening instructor who is readily

available for consultation.

§ 111.213 Training and knowledge of

persons with screening-related duties.

(a) No screening company may use

any screener, screener-in-charge, and

checkpoint security supervisor unless

that person has received initial and

recurrent training as specified in the

screening company’s approved security

program, including the responsibilities

in § 111.105.

(b) Each screening company shall

submit its training programs for

screeners, screeners-in-charge, and

checkpoint security supervisors for

approval by the Administrator.

(c) Each screening company shall

ensure that individuals performing as

screeners, screeners-in-charge, and

checkpoint security supervisors for the

screening company have knowledge of

the provisions of this part, the screening

company’s security program, and

applicable security directive, emergency

amendment, and information circular

information to the extent that such

individuals need to know in order to

perform their duties.

§ 111.215 Training tests: Requirements.

(a) Each screening company shall

ensure that each screener trainee passes

an FAA screener readiness test for each

type of screening to be performed and

for the procedures and equipment to be

used prior to beginning on-the-job

training.

(b) Each screening company shall

ensure that each screener completes 40

hours of on-the-job training and passes

an FAA on-the-job training test before

exercising independent judgment as a

screener.

(c) Each screening company shall

ensure that each screener passes an FAA

review test at the conclusion of his or

her recurrent training.

(d) Unless otherwise authorized by

the Administrator, each screening

company shall use computer-based

testing to administer FAA tests for

screener readiness, on-the-job training,

and recurrent training.

(e) Each screening company shall

ensure that each test that it administers

under paragraphs (a) and (c) of this

section is monitored by an employee of

the carrier for which it screens.

§ 111.217 Training tests: Cheating or other

unauthorized conduct.

Except as authorized by the

Administrator, no person may:

(a) Copy or intentionally remove a

knowledge-based or performance test

under this part;

(b) Give to another or receive from

another any part or copy of that test;

(c) Give help on that test to or receive

help on that test from any person during

the period that the test is being given;

(d) Take any part of that test on behalf

of another person;

(e) Use any material or aid during the

period that the test is being given; or

(f) Cause, assist, or participate

intentionally in any act prohibited by

this paragraph.

§ 111.219 Screener letter of completion of

training.

(a) Each screening company shall

issue letters of completion of training to

screeners, screeners-in-charge, and

checkpoint security supervisors upon

each successful completion of their

approved initial, recurrent, and

specialized courses of training.

(b) Each letter shall contain at least

the following information:

(1) The name of the company and the

number of the screening company

certificate.

(2) The name of the screener to whom

it is issued.

(3) The course of training for which it

is issued.

(4) The type(s) of screening the

screener has been trained to perform,

which may include persons, accessible

property, checked baggage, and cargo.

(5) The equipment and methods of

screening that the screener has been

trained to operate and carry out.

(6) The date of completion.

(7) A statement that the trainee has

satisfactorily completed each required

stage of the approved course of training,

including the tests for those stages.

(8) The signature of a supervisorylevel individual (ground security

coordinator, checkpoint security

supervisor, or screener-in-charge).

§ 111.221 Screener and supervisor training

records.

(a) Whenever a screener, screener-incharge, or checkpoint security

supervisor completes or terminates his

or her training or transfers to another

company, the screening company shall

annotate the employee’s record to that

effect.

(b) The screening company shall upon

request of a screener, screener-in-charge,

or checkpoint security supervisor make

a copy of the employee’s training record

available to the employee within 4 days

of his or her request.

(c) A screener, screener-in-charge, or

checkpoint security supervisor who has

been issued a letter of completion of

training may request in writing that the

screening company provide to another

certificated screening company or a

screening company that has applied for

a screening company certificate a

complete copy of the employee’s

training and performance records. Upon

receiving such a request, the screening

company shall provide the records to

the second company within 7 days. Any

company receiving records from another

company may use the screener,

screener-in-charge, or checkpoint

security supervisor without providing

retraining if the company provides

transition training as specified in its

security program, unless an evaluation

of the employee’s training shows the

results to be unsatisfactory or the

employee has not performed screening

functions for 1 year or more.

(d) A screening company may request

from another screening company

records for a screener, screener-incharge, or checkpoint security

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 609

supervisor as described in paragraph (c)

of this section when a signed consent

form has been provided by the

employee whose records are to be

requested.

(e) Upon the termination of screening

services at a site, a screening company

shall surrender all original records

required under this part to the carrier

for which it was conducting screening

under this part.

(f) Records of training, testing, and

certification shall be made available

promptly to FAA special agents upon

request and shall be maintained for a

period of at least 180 days following the

termination of duty for a screener,

screener-in-charge, or checkpoint

security supervisor. Test records will

include all tests to which the employee

was subjected, not just those

satisfactorily completed.

§ 111.223 Automated performance

standards.

(a) Each screening company shall use

a threat image projection system for

each X-ray and explosives detection

system that it operates as specified in its

security program to measure the

performance of individual screeners,

screening locations, and screening

companies.

(b) Each screening company shall

meet the performance standards set

forth in its security program.

PART 129—OPERATIONS: FOREIGN

AIR CARRIERS AND FOREIGN

OPERATORS OF U.S.-REGISTERED

AIRCRAFT ENGAGED IN COMMON

CARRIAGE

14. The authority citation for part 129

is revised to read as follows:

Authority: 49 U.S.C. 106(g), 40104–40105,

40113, 40119, 44701–44702, 44712, 44716–

44717, 44722, 44901–44904, 44906, 44935

note.

15. Amend § 129.25 by revising

paragraph (a); by removing ‘‘and’’ at the

end of paragraph (c)(3); by removing the

period at the end of paragraph (c)(4) and

adding a semicolon in its place; by

adding new paragraphs (c)(5) and (c)(6);

by revising paragraphs (e)(2), (e)(3),

(e)(4), and (j); and by adding new

paragraphs (k), (l), (m), (n), (o), and (p)

to read as follows:

§ 129.25 Airplane security.

(a) Terms defined in parts 107, 108,

109, and 111 of this chapter apply to

this part. For purposes of this part, parts

107, 108, 109, and 111 of this chapter,

and security programs under these

parts, the following definitions also

apply:

* * * * *

(c) * * *

(5) Include within it a description of

how the foreign air carrier will provide

oversight to each screening company

performing screening on its behalf; and

(6) Include within it a description of

how the foreign air carrier will evaluate

and test the performance of screening.

* * * * *

(e) * * *

(2) A foreign air carrier may submit a

request to the Assistant Administrator to

amend its accepted security program as

follows:

(i) The application shall be filed with

the Assistant Administrator at least 45

days before the date it proposes for the

amendment to become effective, unless

a shorter period is allowed by the

Assistant Administrator.

(ii) Within 30 days after receiving a

proposed amendment, the Assistant

Administrator, in writing, either

approves or denies the request to

amend.

(iii) An amendment to a foreign air

carrier security program may be

approved if the Assistant Administrator

determines that safety and the public

interest will allow it, and the proposed

amendment provides the level of

security required under this part.

(iv) Within 45 days after receiving a

denial, the foreign air carrier may

petition the Administrator to reconsider

the denial.

(v) Upon receipt of a petition for

reconsideration, the Assistant

Administrator either approves the

request to amend or transmits the

petition, together with any pertinent

information, to the Administrator for

reconsideration. The Administrator

disposes of the petition within 30 days

of receipt by either directing the

Assistant Administrator to approve the

amendment, or affirms the denial.

(3) If the safety and the public interest

require an amendment, the Assistant

Administrator may amend an accepted

security program as follows:

(i) The Assistant Administrator

notifies the foreign air carrier, in

writing, of the proposed amendment,

fixing a period of not less than 45 days

within which the foreign air carrier may

submit written information, views, and

arguments on the amendment.

(ii) After considering all relevant

material, the Administrator notifies the

foreign air carrier of any amendment

adopted or rescinds the notice. The

foreign air carrier may petition the

Administrator to reconsider the

amendment, in which case the effective

date of the amendment is stayed until

the Administrator reconsiders the

matter.

(iii) Upon receipt of a petition for

reconsideration, the Assistant

Administrator either amends or

withdraws the notice or transmits the

petition, together with any pertinent

information, to the Administrator for

reconsideration. The Administrator

disposes of the petition within 30 days

of receipt by either directing the

Administrator to withdraw or amend

the amendment, or by affirming the

amendment.

(4) If the Assistant Administrator

finds that there is an emergency

requiring immediate action with respect

to safety in air transportation or in air

commerce that makes procedures in this

section contrary to the public interest,

the Assistant Administrator may issue

an amendment, effective without stay,

on the date the foreign air carrier

receives notice of it. In such a case, the

Assistant Administrator shall

incorporate in the notice a brief

statement of the reasons and findings for

the amendment to be adopted. The

foreign air carrier may file a petition for

reconsideration under paragraph (e)(2)

of this section; however, this does not

stay the effectiveness of the emergency

amendment.

* * * * *

(j) The following apply to the

screening of persons and property, and

the acceptance of cargo:

(1) Each foreign air carrier required to

conduct screening under a security

program shall use the procedures

included, and the facilities and

equipment described, in its screening

company security program(s) to inspect

each person entering a sterile area, each

person’s accessible property, and

checked baggage and cargo as specified.

(2) Each foreign air carrier required to

conduct screening under a security

program shall detect and prevent the

carriage aboard aircraft and introduction

into a sterile area of any unauthorized

explosive, incendiary, or deadly or

dangerous weapon on or about each

person or the person’s accessible

property.

(3) Each foreign air carrier required to

conduct screening under a security

program shall use the procedures

included and the facilities and

equipment described in its screening

company security program(s) to prevent

the carriage of any unauthorized

explosive, incendiary, or deadly or

dangerous weapon aboard a passenger

aircraft.

(k) Except as provided in § 111.109(k)

of this chapter each foreign air carrier

required to conduct screening of

persons and property for locations

within the United States under a

610 Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules

security program shall either hold a

screening company certificate issued

under part 111 of this chapter or shall

use another screening company

certificated under part 111 of this

chapter to inspect persons or property

for the presence of any unauthorized

explosive, incendiary, or deadly or

dangerous weapon. FAA-certified

canine teams are not required to be

operated by certificated screening

companies.

(l) Each foreign air carrier shall ensure

that each screening company

performing screening on its behalf

conducts such screening in accordance

with part 111 of this chapter, the

screening company’s security program,

and the screening company’s operations

specifications.

(m) Each foreign air carrier required to

conduct screening under this part shall

provide oversight to each screening

company performing screening on its

behalf as specified in the foreign air

carrier’s security program.

(n) Each foreign air carrier required to

conduct screening under a security

program shall:

(1) Maintain at least one complete

copy of each of its screening companies’

security programs at its principal

business office.

(2) Have available complete copies or

the pertinent portions of its screening

companies’ security programs or

appropriate implementing instructions

at each location where the screening

companies conduct screening for the

foreign air carrier.

(3) Make copies of its screening

companies’ security programs available

for inspection by an FAA special agent

upon request.

(4) Restrict the distribution,

disclosure, and availability of

information contained in its screening

companies’ security programs to

persons with a need to know as

described in part 191 of this chapter.

(5) Refer requests for such information

by other persons to the Administrator.

(o) Each foreign air carrier required by

the Administrator to implement

additional security measures to

maintain system performance shall

notify the public by posting signs at

affected locations as specified in its

security program.

(p) Each foreign air carrier shall

monitor each screener training test

required under § 111.215(a) and (c) of

this chapter for all screening companies

that conduct screening on its behalf in

accordance with its security program.

Each test monitor shall meet the

following qualifications:

(1) Be a foreign air carrier employee

who is not a contractor, instructor,

screener, screener-in-charge, checkpoint

security supervisor, or other screening

company supervisor, unless otherwise

authorized by the Administrator.

(2) Be familiar with the testing and

grading procedures contained in the

screening company’s security program.

(3) Meet other qualifications set forth

in the screening company’s security

program.

16. Amend § 129.26 by removing

paragraphs (a)(3) and (a)(4);

redesignating paragraph (a)(5) as new

paragraph (a)(3) and revising it; and

adding a new paragraph (a)(4) to read as

follows:

§ 129.26 Use of X-ray system.

(a) * * *

(3) The system meets the imaging

requirements set forth in the screening

standard security program using the

step wedge specified in American

Society for Testing and Materials

Standard F792–82; and

(4) It ensures that each X-ray system

that it uses has a functioning threat

image projection system installed on it

that meets the standards set forth in its

security program unless otherwise

authorized by the Administrator.

(i) Automated X-ray threat image

projection data will be collected as

specified in the model security program

and in the responsible screening

company’s security program.

(ii) The foreign air carrier shall make

X-ray threat image projection data

available to the FAA upon request and

shall allow the FAA to download threat

image projection data upon request.

* * * * *

17. Add a new § 129.28 to read as

follows:

§ 129.28 Use of explosives detection

systems.

(a) When the Administrator shall

require by an amendment under

§ 129.25(e), each foreign air carrier

required to conduct screening under a

security program shall use an explosives

detection system that has been approved

by the Administrator to screen checked

baggage on each international flight in

accordance with its security program

and its screening company security

programs.

(b) Unless otherwise authorized by

the Administrator, each foreign air

carrier shall ensure that each explosives

detection system that it uses has a

functioning threat image projection

system that meets the standards set forth

in its security program.

(1) Automated explosives detection

system threat image projection data will

be collected as specified in the foreign

air carrier’s security program and in the

responsible screening company’s

security program.

(2) The foreign air carrier shall make

explosives detection system threat

image projection data available to the

FAA upon request and shall allow the

FAA to download threat image

projection data upon request.

PART 191—PROTECTION OF

SENSITIVE SECURITY INFORMATION

18. The authority citation for part 191

continues to read as follows:

Authority: 49 U.S.C. 106(g), 5103, 40113,

40119, 44701–44702, 44705–44706, 44901–

44907, 44913–44914, 44932, 44935–44936,

46105.

19. Revise § 191.1(c) to read as

follows:

§ 191.1 Applicability and definitions.

* * * * *

(c) The authority of the Administrator

under this part also is exercised by the

Assistant Administrator for Civil

Aviation Security and the Deputy

Assistant Administrator for Civil

Aviation Security and any other

individual formally designated to act in

their capacity. For matters involving the

release or withholding of information

and records containing information

described in § 191.7(a) through (g),

related documents described in

§ 191.7(l), and § 191.7(m), the authority

may be further delegated. For matters

involving the release or withholding of

information and records containing

information described in § 191.7(h)

through (k) and related documents

described in § 191.7(l), the authority

may not be further delegated.

20. Revise § 191.5 to read as follows:

§ 191.5 Records and information protected

by others.

(a) Each airport operator, air carrier,

indirect air carrier, foreign air carrier,

and certificated screening company, and

each person receiving information

under § 191.3(b), and each individual

employed by, contracted to, or acting for

an airport operator, air carrier, indirect

air carrier, foreign air carrier,

certificated screening company, or

person receiving information under

§ 191.3(b) shall restrict disclosure of and

access to sensitive security information

described in § 191.7(a) through (g), (j),

(k), (m), and, as applicable, § 191.7(l) to

persons with a need to know and shall

refer requests by other persons for such

information to the Administrator.

(b) A person has a need to know

sensitive security information when the

information is necessary to carry out

FAA-approved or directed aviation

security duties; when the person is in

Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 / Proposed Rules 611

training for such a position; when the

information is necessary to supervise or

otherwise manage the individuals

carrying out such duties; to advise the

airport operator, air carrier, indirect air

carrier, foreign air carrier, or certificated

screening company regarding the

specific requirements of any FAA

security-related requirements; or to

represent the airport operator, air

carrier, indirect air carrier, foreign air

carrier, certificated screening company,

or person receiving information under

§ 191.3(d) in connection with any

judicial or administrative proceeding

regarding those requirements. For some

specific information, the Administrator

may make a finding that only specific

persons or classes of persons have a

need to know.

(c) When sensitive security

information is released to unauthorized

persons, any air carrier, airport operator,

indirect air carrier, foreign air carrier,

certificated screening company, or

individual with knowledge of the

release shall inform the Administrator.

(d) Violation of this section is grounds

for a civil penalty and other

enforcement or corrective action by the

FAA.

(e) Wherever this part refers to an air

carrier, airport operator, indirect air

carrier, foreign air carrier, or certificated

screening company, those terms also

include applicants for such authority.

(f) An individual who is in training

for a position is considered to be

employed by, contracted to, or acting for

an airport operator, air carrier, indirect

air carrier, foreign air carrier,

certificated screening company, or

person receiving information under

§ 191.3(b).

21. Amend § 191.7 by revising the

introductory text; by revising

paragraphs (a) and (h); and by adding

new paragraphs (m) and (n) to read as

follows:

§ 191.7 Sensitive security information.

Except as otherwise provided in

writing by the Administrator, the

following information and records

containing such information constitute

sensitive security information:

(a) Any approved or standard security

program for an air carrier, foreign air

carrier, indirect air carrier, airport

operator, or certificated screening

company and any security program that

relates to U.S. mail to be transported by

air (including that of the United States

Postal Service and of the Department of

Defense); and any comments,

instructions, or implementing guidance

pertaining thereto.

* * * * *

(h) Any information that the

Administrator has determined may

reveal a systemic vulnerability of the

aviation system or a vulnerability of

aviation facilities to attack. This

includes but is not limited to details of

inspections, investigations, and alleged

violations and findings of violations of

part 107, 108, 109, or 111 of this chapter

or § 129.25, 129.26, or 129.27 of this

chapter and any information that could

lead to the disclosure of such details, as

follows:

(1) For an event that occurred less

than 12 months before the date of the

release of the information, the following

are not released: the name of an airport

where a violation occurred, the regional

identifier in the case number, a

description of the violation, the

regulation allegedly violated, and the

identity of the air carrier in connection

with specific locations or specific

security procedures. The FAA may

release summaries of an air carrier’s or

certificated screening company’s total

security violations in a specified time

range without identifying specific

violations. Summaries may include total

enforcement actions, total proposed

civil penalty amounts, total assessed

civil penalty amounts, numbers of cases

opened, numbers of cases referred by

Civil Aviation Security to FAA counsel

for legal enforcement action, and

numbers of cases closed.

(2) For an event that occurred 12

months or more before the date of the

release of the information, the following

are not released: the specific gate or

other location on an airport where the

event occurred. The FAA may release

the following: the number of the

enforcement investigative report; the

date of the alleged violation; the name

of the air carrier, airport, and/or

certificated screening company; the

regulation allegedly violated; the

proposed enforcement action; the final

enforcement action; and the status

(open, pending, or closed).

(3) The identity of the FAA special

agent who conducted the investigation

or inspection.

(4) Security information or data

developed during FAA evaluations of

the air carriers, airports, indirect air

carriers, and certificated screening

companies and the implementation of

the security programs, including air

carrier, airport, and indirect air carrier

inspections and screening location tests

or methods for evaluating such tests.

* * * * *

(m) Any approved operations

specifications for a screening company

except the following items, which are

not sensitive security information: the

name of the company, locations at

which the Administrator has authorized

the company to conduct business, the

type of screening that the Administrator

has authorized the company to perform,

and the title and name of the person

required by § 111.209(b) of this chapter.

(n) Any screener test used under part

111 of this chapter.

Issued in Washington, DC, on December

15, 1999.

Quinten Johnson,

Acting Director, Office of Civil Aviation

Security Policy and Planning.

[FR Doc. 00–16 Filed 1–4–00; 8:45 am]

BILLING CODE 4910–13–U