41730 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 108

[Docket No. 28978; Notice No. 97–12]

RIN 2120–AD–45

Aircraft Operator Security

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Notice of Proposed Rulemaking

(NPRM).

SUMMARY: This notice proposes to

amend the existing airplane operator

security rules. It would revise certain

applicability provisions, definitions,

and terms; reorganize these rules into

subparts containing related

requirements; and incorporate some

requirements already implemented in

air carrier approved security programs.

Specifically, this proposal would

increase the number of air carriers that

must have security programs to include

all that enplane from or deplane into a

sterile area. Further, it would clarify the

following: Training requirements for air

carrier security personnel; procedures

for transporting passengers under armed

escort; procedures for allowing law

enforcement personnel to fly armed; and

procedures for air carriers to

acknowledge receipt of Federal Aviation

Administration security directives. It

would require air carriers to implement

and test security contingency plans. As

these rules should apply to operators of

rotorcraft as well as fixed-wing aircraft,

this proposal would change the title of

these rules from ‘‘Airplane Operator

Security’’ to ‘‘Aircraft Operator

Security.’’ This proposal is intended to

enhance security for the traveling

public, air carriers, and persons

employed by or conducting business at

public airports by increasing awareness

of and compliance with civil aviation

security measures.

DATES: Comments must be submitted on

or before December 1, 1997.

ADDRESSES: Comments on this proposed

rulemaking should be mailed or

delivered, in triplicate, to: Federal

Aviation Administration, Office of the

Chief Counsel, Attention: Rules Docket

(AGC–10), Room 915–G, Docket No.

28978, 800 Independence Ave., SW.,

Washington, DC 20591. Comments may

also be sent electronically to the

following internet address: 9–NPRM–

CMTS@faaa.dot.gov. Comments may be

examined in Room 915–G between 8:30

a.m. and 5 p.m. weekdays except

Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Office of Civil Aviation Security Policy

and Planning, Civil Aviation Security

Division (ACP–100), Rhonda Hatmaker,

Federal Aviation Administration, 800

Independence Ave., SW., Washington,

DC 20591; telephone (202) 267–3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in this rulemaking 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 should identify

the regulatory docket or notice number

and be submitted in triplicate to the

Rules Docket (see ADDRESSES). All

comments received on or before the

closing date for comments specified will

be considered by the Administrator

before taking action on this proposed

rulemaking. The proposals contained in

this document may be changed in light

of 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 has determined that air

carrier security programs required by

part 108 contain sensitive security

information. As such, the availability of

information pertaining to airport

security programs is governed by 14

CFR part 191 (Protection of Sensitive

Information). A report summarizing

each substantive public contact with

FAA personnel concerned with this

rulemaking will be filed in the docket.

Commenters wishing the FAA to

acknowledge receipt of their comments

must include a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Docket No. 28978.’’ The postcard will be

date-stamped and mailed to the

commenter.

Availability of NPM

Any person may obtain a copy of this

NPRM by submitting a request to the

Federal Aviation Administration, Office

of Rulemaking, ARM–1, 800

Independence Ave., SW., Washington,

DC 20591, or by calling (202) 267–9677.

Communications must identify the

notice number of this NPRM.

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 Federal Register’s electronic

bulletin board service (telephone: 202–

512–1661). Internet users may reach the

FAA’s webpage at http://www.faa.gov

or the Federal Register’s Webpage at

http://www.access.gpo.gov/suldocs for

access to recently published documents.

Persons interested in being placed on

the mailing list for future NPRM’s

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.

Background

This proposed rule was written before

the tragic crash of TWA 800 on July 17,

1996. That accident raised concerns

about the safety and security of civil

aviation, leading the President to create

the White House Commission on

Aviation Safety and Security, headed by

the Vice President. The Commission

issued an initial report on September 9,

1996, with 20 specific recommendations

for improving security. On February 12,

1997, The Commission issued its Final

Report with 57 recommendations, 31 of

which deal with improving security for

travelers. In addition, the Federal

Aviation Reauthorization Act of 1996

(Pub. L. 104–264) was signed on

October 9, 1996, and directs the FAA to

amend rules to upgrade civil aviation

security.

The FAA is working to respond to the

recommendations of the Commission

and to carry out the legislation, and has

issued several proposals. On March 11,

1997, an Advance Notice of Proposed

Rulemaking on the certification of

screening companies was issued (62 FR

13262, March 19, 1997), and on March

14, 1997, the FAA issued a Notice of

Proposed Rulemaking on employment

history, verification and criminal

records checks (62 FR 13262, March 19,

1997). The rules proposed in this notice

were not written in response to these

mandates. However, this notice, which

proposes to update the overall

regulatory structure for airport and air

carrier security, is the result of a multiyear effort involving the FAA, airports

and air carriers, and the Aviation

Security Advisory Committee. The

extensive proposed revisions are

considered to be consistent with the

intentions of the mandates, contain

proposals that industry has identified as

necessary or appropriate, and outline a

new organization for the regulations that

would assist in developing future

changes to the rules. For these reasons,

the FAA is publishing this proposed
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41731

1For further analysis of the terrorist threat, please

refer to the following public documents: Terrorism

in the United States: 1994, U.S. Department of

Justice, Federal Bureau of Investigation.

2Patterns of Global Terrorism: 1995, U.S.

Department of State, April 1996. Patterns of Global

Terrorism: 1996, U.S. Department of State, April

1997.

rule for comment. The FAA anticipates

that any final rule based on this

proposal will incorporate responses to

these mandates.

Terrorist Incidents

On January 15, 1981, 14 Code of

Federal Regulations (CFR) part 108 was

issued to separate air carrier security

requirements from part 121, which

contain general safety requirements for

large transport category aircraft.

Historically, the threat of hijacking has

been directed toward large passengercarrying aircraft. The security

requirements needed to protect those

aircraft were placed in this new part 108

with applicability to scheduled and

public charter passenger operations.

Since its inception, part 108 has been

amended on several occasions, but the

rule has never undergone a

comprehensive update. During this

same period the threat has expanded

beyond hijacking to include methods of

introducing bombs aboard aircraft. The

following incidents are indicative of this

evolution:

—June 14, 1985: Trans World Airlines

(TWA) Flight 847 was hijacked from

Athens, Greece. The hijacking lasted

17 days before the terrorists released

the aircraft and its remaining hostages

in Beirut, Lebanon. A U.S. Navy diver

was killed by the hijackers.

—April 2, 1986: A bomb placed onboard

TWA Flight 840 detonated en route

from Rome, Italy. Four passengers

were killed but the aircraft made a

landing in Athens, Greece.

—May 30, 1986: Conspiracy to bomb an

Air India jet. The Federal Bureau of

Investigation (FBI) and Canadian

authorities uncovered a terrorist

conspiracy to bomb an Air India jet

departing from JFK International

Airport. Five individuals were

charged with sabotage, but only two

were convicted. These two

individuals were sentenced to life

imprisonment.

—September 5, 1986: Terrorist assault

on Pan American (Pan Am) Flight 73,

in Karachi, Pakistan as the aircraft

waited to depart. The four terrorists

were dressed similar to airport

security personnel and drove a van

resembling an airport vehicle

alongside the aircraft. The flightcrew

was able to escape while the terrorists

stormed the aircraft. After 17 hours of

negotiations, the aircraft’s auxiliary

power unit failed. Anticipating an

attack by security forces, the terrorists

opened fire on the massed passengers

killing 22 persons and injuring 125

others before security forces could

intervene.

—November 29, 1987: Korean Airlines

Flight 858. A bomb placed onboard

detonated over the Indian Ocean. All

115 persons aboard were killed.

—April 5, 1988: Kuwait Airways Flight

422 was hijacked en route from

Bangkok, Thailand. The hijackers

finally left the aircraft 15 days later in

Algiers, Algeria, after the Kuwait

government refused to release

prisoners in exchange for hostages.

The hijackers had killed two Kuwaiti

passengers to emphasize their

demands.

—December 21, 1988: The bombing of

Pan Am Flight 103. All 243

passengers and 16 crew on board,

plus 11 persons on the ground at

Lockerbie, Scotland, were killed.

Subsequent inspection of the

reconstructed aircraft determined that

a device consisting of plastic

explosives inside a tape cassette

player, was concealed in checked

luggage. Individuals working for the

Government of Libya are responsible

for the bombing. One conspirator was

the former manager of the Libyan

Arab Airlines (LAA) office in Valletta,

Malta and retained full access to the

airport. Using this access privilege

and other knowledge gained as

representatives of LAA, the

conspirators bypassed security checks

at Valletta’s Luqa airport and inserted

the suitcase containing the bomb into

baggage of an Air Malta flight to

Frankfurt, Germany.

—September 19, 1989: Union de

Transports Aeriens (UTA) Flight 772

was destroyed by an explosion over

Niger, 10 months after the Pan Am

explosion over Lockerbie. All 171

persons on board were killed.

—November 27, 1989: A bomb placed in

the cabin area onboard Avianca Flight

203 detonated over Colombia,

destroying the aircraft in-flight. One

hundred and seven passengers and

crew were killed.

—December 11, 1994: Bombing of

Philippine Flight 434. The bomb

detonated en route to Tokyo from

Cebu. One passenger was killed.

Investigation of this act revealed an

increased threat in early 1995 to U.S.

carriers operating in the Asia-Pacific

region. Ramzi Ahmed Yousef has

been convicted of bombing Philippine

Airline Flight 433 and for conspiracy

to bomb U.S. flag aircraft.

Terrorism has been, for the most part,

a phenomenon afflicting U.S. interests

overseas, and the threat to U.S. civil

aviation is assessed to be higher abroad

than it is domestically. The World trade

Center bombing in February 1993,

however, indicates that terrorism is also

a very real threat in the United States,

and may be on the rise.

Ramzi Ahmed Yousef has been

convicted of the bombing of Philippine

Airline Flight 434 (December 11, 1994)

and for conspiring to bomb U.S.-flag

aircraft. Authorities believe that Yousef

and his co-conspirators, acted on their

own volition, in opposition to U.S.

foreign policy in the Middle East, and

that they were assisted by local radical

sympathizers in the Philippines and the

United States. Their conspiracies are

indicative of an emerging trend in

terrorism characterized by terrorist

elements operating without traditional

organizational structure or state

sponsorship.

The Federal Bureau of Investigation

(FBI) characterizes such terrorists as

seeking a ‘‘common political, social,

economic, or personal objective which

transcends nation-state boundaries.’’

The U.S. Department of State,

commenting on global terrorism trends

notes that ‘‘terrorism by extremist

individuals or groups claiming to act for

religious motives’’ continue to dominate

international terrorism.1

The number of international terrorist

attacks against US interests fell between

1995 and 1996, although incidents

involving American targets still

represented more than 24% of the total

attacks worldwide in 1996.

Domestically, the FBI asserts that the

U.S. is not immune to international

terrorism, describing the terrorist threat

as ‘‘real and potentially lethal.’’ The

FAA views these developments as cause

for concern.2

In addition, individual acts of revenge

or criminality must be considered since

the consequences of such acts can be

just as deadly. For example:

November 15, 1979: The bombing of

American Airlines flight 444, en route

from Chicago to Washington, DC. An

improvised explosive device concealed

in a mail package in the baggage

compartment malfunctioned and

partially detonated. The explosion

resulted in damage to the aircraft and

treatment of 12 passengers for smoke

inhalation. The bombing was attributed

to the Unabomber.

—December 7, 1987: The destruction of

Pacific Southwest Airlines (PSA)

Flight 1771. Flight 1771 crashed after

a recently terminated airline

employee boarded the Los Angeles-
41732 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

3President’s Commission on Aviation Security

and Terrorism, Report to the President, Government

Printing Office, May 1990.

4 DOT Office of Inspector General, Audit of

Airport Security, Federal Aviation Administration,

Report No. RF–FA–3–105, September 20, 1993.

5United States General Accounting Office, Report

to Congressional Committees, Aviation Security:

Additional Actions Needed to Meet Domestic and

International Changes, January 1994. Hereafter cited

as ‘GAO Report.’

San Francisco flight with a handgun,

shot one passenger (his former

supervisor), the flightcrew, flight

attendant, and presumably himself.

As a result, all 38 passengers and five

crew on board were killed. The fired

employee retained his airline ID after

his dismissal and used it to bypass the

passenger screening checkpoint.

June 27, 1995: A letter was received

from the Unabomber threatening to

blow up an aircraft departing Los

Angeles International Airport (LAX)

within six days. The FAA responded to

the threat by directing additional

security countermeasures to be put into

effect at LAX. The six days elapsed

without incident.

Response to Terrorist Incidents

The incidents discussed above have

led to concerted efforts to strengthen

aviation security around the world and

to strengthen the security procedures of

U.S. air carriers. The FAA has

responded to threats to the civil aviation

system by issuing extensive

amendments, examples of which are

described below, to air carrier security

programs as prescribed by part 108.

The FAA issued two emergency

amendments to part 108 in the

aftermath of the 1985 terrorist attack on

TWA Flight 847. A new § 108.10 (50 FR

28892, July 16, 1985) required air

carriers to use Ground Security

Coordinators and In-flight Security

Coordinators; a new § 108.14 (50 FR

27924, July 8, 1985) mandated the

transportation of Federal Air Marshals

(FAM’s) on designated flights.

In February 1986, the Secretary of

Transportation directed a

comprehensive review of aviation

security policy and practices. Air carrier

security programs were extensively

amended to implement the

recommendations from this review.

In December 1987, the FAA issued

another emergency amendment

following the PSA Flight 1771 crash.

This amendment limited the application

of special procedures that had allowed

airline and airport employees to enter

sterile area past screening points

without inspection.

In 1989, the FAA issued further

amendments to air carrier security

programs. A new § 108.18 (54 FR 28982,

July 10, 1989) required air carrier

compliance with Security Directives

issued by the FAA in response to a

threat; a new § 108.20 (54 FR 36938,

Sept 5, 1989) established the framework

for the use of Explosives Detection

Systems at certain airports.

In addition, the FAA issued two

amendments to part 108. One

amendment, § 108.19(a), (56 FR 27866,

June 17, 1991) required the notification

of flight and cabin crewmembers of

threats to the security of their flight. A

second amendment, § 108.31 (56 FR

41412, August 20, 1991), established

minimum standards for the hiring,

continued employment, and contracting

for air carrier and airport employees

engaged in security-related activities.

The FAA added a new § 108.33 (60 FR

51854, October 3, 1995). This section

establishes the FAA’s authority and

procedures for conducting personnel

background investigations as a basis for

granting airline industry contractor

employees access privileges to restricted

operations areas of airports.

On August 4, 1989, former President

Bush established the Commission on

Aviation Security and Terrorism.3 The

Commission was tasked with making an

assessment of the overall effectiveness

of the U.S. civil aviation security

system.

The Commission’s final report of May

15, 1990, made a number of

recommendations for improving the

U.S. civil aviation security program. The

Commission was critical of the domestic

U.S. civil aviation security system for

failing to provide the proper level of

protection for the traveling public and

urged major reforms. Specifically, the

Commission recommended that the

‘‘FAA initiate immediately the planning

and analysis necessary to phase

additional security measures into the

domestic system over time.’’ The

Commission’s report prompted the

Aviation Security Improvement Act of

1990 (Pub. L. 101–604), which was

enacted on November 16, 1990. It

mandated many changes to air carrier

security programs as well as Federal

staffing and reporting procedures. The

Act required implementation of many of

the Commission’s recommendations.

The proposed revisions to part 108

respond to Federal reports. In

September 1993, the Office of the

Inspector General (IG) and the U.S.

Department of Transportation issued a

report critical of certain aspects of the

FAA’s oversight of airport security

systems.4 In January 1994, the General

Accounting Office (GAO) issued a report

suggesting further actions the FAA

could take to improve civil aviation

security.5

The IG report found significant

deficiencies in the effectiveness of

access control and challenge procedures

at five U.S. airports. The report

recommended that airport and air

carrier implementation of procedures

for access control and challenge be

strengthened, stressing that the FAA

must take steps to increase air carrier

employees’ awareness and

responsibility for those procedures.

In January of 1994, the FAA

responded to the report by meeting with

representatives of airport, air carrier,

and airport tenant management and

employee groups and unions to discuss

the IG’s findings and to emphasize the

need for improved employee security

awareness.

The response has been an industrywide commitment to address the

identified weaknesses and improve

compliance. In particular, many airports

and air carriers have improved their

training programs and instituted

programs to provide individual

incentives for compliance and

escalating disciplinary action for

instances of non-compliance.

Compliance at those airports which

have instituted such programs improved

markedly.

Separately, the GAO issued a report

entitled, ‘‘Aviation Security-Additional

Actions Needed to Meet Domestic and

International Challenges’’ in response to

a Congressional inquiry on FAA’s efforts

to implement the Aviation Security

Improvement Act of 1990. GAO found

that the FAA has taken important steps

in response to the Act and cited

additional actions that should be taken

to enhance the FAA’s security programs

and iniatives. These actions include—

(1) pilot-testing of new procedures

before implementation, (2)

strengthening human factors research

and its application, and (3) making

systematic analytical use of information

that the FAA collects during air carrier

and airport security inspections.

Similar to the IG report, the GAO

report highlighted the need for the FAA

to increase industry employee’s overall

awareness for security measures. The

report concluded that the FAA must

refine training and procedures for

personnel to increase sensitivity to

security requirements. The FAA agrees

that complacency must be combated,

and considers improved employee

training and increased accountability to

be part of the solution. Specific

responses to issues raised by these

reports in this notice are discussed

below in the ‘‘Section-by-Section

Analysis.’’
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41733

The Role of the Aviation Security

Advisory Committee

The Department of Transportation

and the FAA are convinced that the

aviation industry and general public

should have input into the development

of future aviation security measures and

issues. On April 3, 1989, the Secretary

of Transportation announced the

formation of a national aviation security

advisory committee under the

provisions of the Federal Advisory

Committee Act (Title 5 U.S. Code,

Appendix II).

The Aviation Security Advisory

Committee (ASAC) was formed to

examine all areas of civil aviation

security and to ensure a higher degree

of safety for the traveling public by

recommending improvement of aviation

security equipment and procedures. The

ASAC is chaired by the FAA’s Assistant

Administrator for Civil Aviation

Security and makes recommendations to

the FAA Administrator. Committee

membership represents a balance of

Federal government, aviation industry,

and consumer advocacy groups,

including:

1. Air Courier Conference by America

2. Air Line Pilots Association

International

3. Air Transport Association of America

4. Aircraft Owners and Pilots

Association

5. Airport Law Enforcement Agencies

Network

6. Airports Council International, Inc.

7. Allied Pilots Association

8. American Association of Airport

Executives

9. Association of Flight Attendants

10. Aviation Consumer Action Project

11. Aviation Security Contractors

Association

12. Cargo Airline Association

13. Families of PanAm 103 Lockerbie

14. International Airline Passengers

Association

15. National Air Carrier Association,

Inc.

16. National Air Transportation

Association

17. Regional Airline Association

18. U.S. Department of Defense (Policy

Board on Federal Aviation)

19. U.S. Department of Justice (Federal

Bureau of Investigation)

20. U.S. Department of State

21. U.S. Department of Transportation

(Office of Intelligence and Security

and Federal Aviation

Administration Technical Center)

22. U.S. Department of the Treasury

(Customs Service, Immigration and

Naturalization Service, and Secret

Service)

23. U.S. Postal Service

24. Victims of PanAm Flight 103

All ASAC meetings are open to the

public and are announced in the

Federal Register. Meetings are typically

held three times a year. Members of the

public are permitted to attend and

appear before the committee, subject to

reasonable limitations of space and

time.

The FAA invited the ASAC to

comment on the underlying issues and

potential solutions associated with the

revision of parts 107 and 108. In

December 1993, the FAA sought the

ASAC’s input on a ‘‘discussion paper’’

that presented a broad scope of security

issues and concerns. A copy of this

paper is filed in the FAA public docket

of this Notice of Proposed Rulemaking

(NPRM).

To address the issues raised in the

discussion paper, the ASAC formed two

subcommittees to develop

recommendations on airport and air

carrier security issues, respectively, and

provided the FAA formal

recommendations on March 15, 1994.

Individual ASAC members also

provided comments on issues when

their respective organizations differed

from the position taken by the

committee. The views of the ASAC and

of individual committee members were

then forwarded to the FAA with an

overall recommendation that security

regulations should remain flexible and

contain only general security

performance standards. Specific

recommendations are addressed

individually in the ‘‘Section-by-Section

Analysis.’’

The ASAC’s Part 108 Working Group

and the ASAC’s Carriage of Weapons

Task Force recommendations for part

108 covered subjects such as the

applicability of security programs to

helicopter and all-cargo operations,

revised definitions affecting the

applicability of security programs for

charter operations, clarification of

procedures for the transporting of

passengers under armed escort, and

elimination of confusion surrounding

the circumstances allowing law

enforcement personnel to fly armed.

The contributions of the ASAC are

noted in the ‘‘Section-by-Section

Analysis’’ portion of this NPRM.

Discussion of the Proposed Rule

This proposed revision of part 108

would comprehensively update air

carrier security regulations to more

efficiently and effectively address

terrorist and other criminal threats to

civil aviation. This proposed action

would incorporate both procedures

currently in air carrier security

programs and new security procedures,

in a manner that is intended to allow

regulated entities and individuals to

understand their responsibilities more

readily. Lastly, the proposed revision

would incorporate certain new

measures that would provide for better

security. For example, the proposed

revision would make individuals

directly accountable to the FAA for

violating certain regulations and would

require air carriers to include in their

security programs specific disciplinary

action and penalties to be taken with

employees or tenants that do not

comply with security requirements.

Through these changes, the FAA hopes

to create a more effective mixture of

individual and corporate responsibility

for complying with security regulations.

Security measures needed to counter

the changing threat posed by

international terrorism are generally

implemented through changes to air

carrier security programs. These

programs are not public documents,

which protests the measures from

compromise, and they can be changed

quickly to respond to threats and

improve security as needed. The

security requirements that do not need

to be protected from disclosure,

however, can be placed in this proposed

rule to afford interested parties the

opportunity to comment on them.

Also, certain proposed changes to the

rule, such as expanding part 108 to

include private charter operations,

which is discussed below in the

‘‘Section-by-Section Analysis’’ of this

proposal, can only be changed by

amending the applicability of the rule.

Airport security programs required by

part 107 also have been amended

extensively since 1985. The FAA

proposes to revise part 107, which

governs airport security, concurrently

with this part. The rulemakings will

proceed in tandem. All references to

proposed part 107 in this preamble are

intended to refer to the concurrently

proposed revision of part 107.

The proposed revisions of part 108

and part 107 represent a comprehensive

approach toward upgrading the security

requirements of the civil aviation

system. The intent of these proposed

revisions is to foster consistency and

standardization throughout the national

civil aviation security program. Where

possible, the revisions of part 108 and

part 107 propose nearly identical

language to enhance, clarify, or propose

security measures for implementation

by both air carriers and airport

operators.

Changes to definitions in proposed

§ 108.3 and § 107.3 are intended to

promote a common understanding

within the aviation community when
41734 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

used in these respective regulations.

Moreover, the proposed definitions for

both parts 108 and 107 take into account

the need to clarify the division of

responsibility between air carriers and

airport operators for the implementation

of aviation security measures.

Proposed § 108.5 and § 107.7 would

clarify the authority of the

Administrator to conduct inspections or

tests to determine air carrier compliance

with 49 U.S.C. Subtitle VII, and the

regulations, and the air carrier’s and

airport operator’s obligation to provide

FAA Special Agents the necessary

access and identification medium to

conduct inspections.

Proposed § 108.9 and § 107.11 contain

language that would prohibit persons

from interfering with or compromising

required security methods or

procedures. Further, new language

proposed in § 108.103 and § 107.103(a)

would require the inclusion of a

security compliance program within an

airport operator’s and air carrier’s

security program.

Proposed § 108.105 and § 107.105

reflect similar procedural language for

the approval and amendment of security

programs. Proposed § 108.223 and

§ 107.209 would require the airport

operators and air carriers to establish

accountability standards for

identification media.

Finally, language is proposed in both

notices to expand training requirements

to include personnel performing

security-related duties (proposed

§ 108.227 and § 107.211), to incorporate

similar sections for the implementation

of contingency plans (proposed

§ 108.307 and § 107.301), and to require

compliance with Security Directives

(proposed § 108.305 and § 107.303).

Section-by-Section Analysis

Title and Organization of Proposed Part

108

It is proposed to change the title from

Airplane Operator Security to Aircraft

Operator Security as this part would

apply to operators of rotorcraft as well

as fixed-wing aircraft. All references to

‘‘airplane’’ in this part would be

changed to ‘‘aircraft.’’

Proposed §§ 108.1 through 108.3

would have revised texts but would

retain the same numbers. Subsequent

sections would be reorganized to place

related requirements into common

subparts. To do so would require a

change in the current numbering

scheme of part 108. For example,

current §§ 108.5, 108.7, and 108.25

contain provisions regarding security

programs. Under this proposal, these

sections would be renumbered as new

§§ 108.101, 108.103, and 108.105 under

subpart B entitled ‘‘Security Program.’’

In this notice, the FAA has also revised

or modified certain sections where

necessary, including some changes to

titles of some current sections. Many

proposed changes are intended only to

place related requirements in logical

order or reflect requirements previously

implemented in air carrier approved

security programs. Other changes,

discussed below, are based on an FAA

review of part 108 and experience with

current requirements.

Throughout the proposed rule,

references are made to 49 U.S.C.

Subtitle VII. This statute is the

recodification of FAA’s authority to

prescribe aviation security regulations

previously found in the Federal

Aviation Act of 1958, 49 U.S.C. App.

1301 et seq.

Subpart A—General

Section 108.1 Applicability

As noted above in ‘‘Discussion of the

Proposed Rule’’ recent events indicate

that terrorism is a credible threat in the

U.S. Currently, part 108 does not apply

to private charter operations, and

excludes helicopter operations from the

requirements of part 108. This notice

proposes, in § 108.1(a)(1), to extend the

application of part 108 to private charter

operations when passengers are

enplaned from or deplaned into sterile

areas, and to remove the exclusion of

applicability to helicopter operations.

The FAA believes that this proposed

notice will enhance the security of the

sterile area by minimizing the

opportunity for transfer or introduction

of dangerous or deadly weapons into the

sterile area by unscreened persons

disembarking from private charter or

helicopter operations into the sterile

area.

In response to the FAA’s December

1993 discussion paper on air carrier

issues and concerns, the ASAC’s Part

108 Working Group commented that

helicopter operators should be

permitted to voluntarily participate in

an air carrier security program. The Part

108 Working Group noted that some

helicopter activities place operators in

direct contact with part 121 operations.

This occurs when helicopter passengers

disembark in the secure areas of

terminals and when helicopter operators

interline with larger air carriers. The

part 108 Working Group believes that, to

expedite the handling of such

passengers through secure areas without

diminishing the security of the sterile

area, part 108 should permit helicopter

operators to participate in the security

program. The FAA concurs with the

opinion of the part 108 Working Group.

Any operators that enter the secured

areas, that enplane from or deplane into

a sterile area, or that use screening

checkpoints, impact the security of all

operations, and should have written and

approved security programs.

Accordingly, this notice proposes

extending the applicability of § 108.1 to

private charter operations and, under

certain specified conditions, helicopter

operations to adopt and implement a

security program.

Currently, part 108 does not apply to

all-cargo operations. However, some allcargo operators have requested and have

been issued security programs. This

permits them to take direct

responsibility for security measures in

some of airports, rather than having the

airport carry out the measures. This

notice proposes to specifically provide

for all-cargo operations to voluntarily

adopt and implement security programs

as described under § 108.101 below.

This proposed language would be

advantageous to the operations of the

all-cargo operator and would allow the

all-cargo operator to directly receive

Security Directives from the FAA,

thereby increasing the timely

implementation of any enhanced

security measures required by the FAA.

Part 108 currently refers to the

‘‘Director of Civil Aviation Security’’ as

the official who oversees civil aviation

security operations and approves airport

security programs. Under internal FAA

reorganization, the current title of this

position is Associate Administrator for

Civil Aviation Security; however, the

recent recodification of the FAA’s

statutory authority revised this title to

Assistant Administrator for Civil

Aviation Security. As such, paragraphs

(a)(1) and (b) of this section would use

the title ‘‘Assistant Administrator for

Civil Aviation Security.’’ In addition,

paragraph (b) would clarify that the

Deputy Assistant Administrator for Civil

Aviation Security, or any individual

formally designated, could act in the

capacity of the Assistant Administrator.

The duties of the Assistant

Administrator could be further

delegated.

Section 108.3 Definitions

For purposes of part 108, § 108.3

would be revised to include terms

commonly used within the aviation

community and to update current terms

used in existing § 108.3. The

introductory text of this proposed

section would make the definitions in

proposed part 107 also apply to this

part.

The following definitions would be

added: Accepted security program,
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41735

Approved security program, Assistant

Administrator, and Principal security

inspector. The following definitions

would be revised: Passenger-seating

configuration, Private charter, Public

charter, Scheduled passenger

operations, and Sterile area.

The definition for ‘‘certificate holder’’

in existing § 108.3 would be deleted. For

purposes of this part all references to

‘‘certificate holder’’ would be replaced

with ‘‘air carrier.’’ The definition of ‘‘air

carrier’’ is defined under 14 CFR part 1,

Definitions and Abbreviations. The FAA

believes that using the term ‘‘air carrier’’

is necessary in order to simplify intent

and to avoid any confusion in terms

among the various categories of

certificates issued by the FAA.

Section 108.5 Inspection Authority

Under this proposal, existing § 108.5

entitled ‘‘Security Program: Adoption

and implementation’’ would be

renumbered as new § 108.101 under

new Subpart B, Security Programs.

Proposed § 108.5 would be completely

revised and placed under new Subpart

A, General. This proposed section

would combine the evidence of

compliance requirements of existing

§ 108.27 with the FAA’s statutory

authority to conduct inspections,

investigations, and tests.

In this proposed § 108.5, language

similar to that found in § 121.81(a)

would be included in proposed

paragraph (a) to make clear that the

Administrator has authority to conduct

inspections or tests to determine air

carrier compliance with the air carrier

security program, part 108, 49 CFR part

175, and 49 U.S.C. Subtitle VII.

The authority for the FAA to conduct

inspections necessary to gauge

compliance with Federal security

requirements has, on occasion, been

challenged by air carriers. The proposed

new language is intended to resolve any

confusion regarding FAA’s authority to

conduct such inspections under Title 49

U.S.C. Subtitle VII.

Proposed paragraph (b) would restate

the language of existing § 108.27.

Proposed paragraph (c) would clarify

the operator’s obligation to provide FAA

Special Agents the necessary access and

identification medium to conduct

inspections. This proposed requirement

would not be extended to any FAA

employee other than Special Agents.

Special Agents are those FAA

employees who are authorized to

conduct inspections of airport and air

carrier security operations and who

must possess and present valid FAAissued credentials. There are some

inspections and investigations that a

Special Agent can accomplish only with

unescorted access to the critical security

area and restricted operations area. The

FAA will provide criteria for

ascertaining the validity of Special

Agents’ credentials in non-regulatory

guidance materials. However, air

carriers may be required to accept FAA

Form 8000–39 as valid identification

media.

Section 108.7 Falsification

Under this proposal, existing § 108.7

entitled ‘‘Security program: Form,

content, and availability’’ would be

renumbered as new § 108.103 under

new Subpart B, Security Programs.

Proposed § 108.7 would be completely

revised and would be included under

Subpart A, General. This section is the

same as the current § 108.4 adopted on

November 27, 1996 (61 FR 64242,

December 3, 1996).

Section 108.9 Security Responsibilities

of Persons

Under this proposal, existing § 108.9

entitled ‘‘Screening of passengers and

property’’ would be renumbered as new

§ 108.201 and retitled ‘‘Screening of

persons, property, and acceptance of

cargo’’ under new Subpart C,

Operations. Proposed § 108.9 would be

completely revised and placed under

proposed Subpart A, General.

The FAA believes that the

contribution of individuals to the

success of the civil aviation security

system cannot be overestimated and that

the regulations must address the

responsibility of individuals who work

within the security system. Therefore,

the FAA is proposing to prohibit

persons from tampering, compromising,

or modifying any security system, or

carrying a deadly or dangerous weapon,

explosive, or destructive substance into

sterile areas, critical security areas, or

restricted operations areas. Although the

air carrier is primarily responsible for

carrying out statutory and regulatory

security responsibilities under this part,

the FAA believes that it is critical that

persons employed directly by the air

carriers or under contract to the air

carriers understand the importance of

their responsibilities to ensure that

security measures within the civil

aviation system are properly

implemented.

This section proposes specific

requirements to make persons aware of

regulatory prohibitions against

interfering with or compromising

security methods or procedures required

under this part. Moreover, by including

these prohibitions in the regulation, this

proposed section would permit the use

of civil penalty action as a means to gain

compliance under this part by the

persons who are employed by the air

carrier and other persons not under the

direct authority of the air carrier (such

as trespassers).

While there are some instances in

which enforcement action against

persons may be taken by the FAA, in

many cases enforcement action would

not be appropriate or necessary. The

FAA intends, in proposed § 108.103, to

require the air carrier to include in its

security program procedures to ensure

that persons with unescorted access to

critical security areas or restricted

operations areas will comply with the

requirements of this section. The FAA

anticipates that the air carrier would

remain the primary party responsible for

violations, including those committed

by their employees and contractors.

However, in appropriate cases, persons

who fail to comply would be subject to

enforcement action, such as a civil

penalty of up to $1,100 per violation of

these rules.

The term ‘‘person,’’ used throughout

this new section and the proposed rule,

is used as defined in § 1.1, General

Definitions, which defines person to

mean an individual, firm, partnership,

corporation, company, association,

joint-stock association, or governmental

entity, and includes a trustee, receiver,

assignee, or similar representative of

any of them.

Proposed paragraph (a) of this new

section would prohibit tampering or

interfering with an air carrier’s security

system, including circumventing access

control systems and misusing

identification media. This proposed

paragraph is intended to provide a

deterrent which, in turn, would promote

the effectiveness of the security control

measures required by this part.

For instance, many air carriers have

invested in personnel identification

systems as a means of satisfying the

requirement to control movement under

exclusive area agreements. Proposed

parts 107 and 108 would require the use

of personnel identification systems in

both critical security areas and

restricted operations areas and would

set forth minimum standards for

personnel identification systems.

Making persons directly responsible for

complying with personnel identification

media display requirements would

significantly promote the effectiveness

of such identification systems.

Further, this section would prohibit

persons from compromising, or

rendering less effective, any system

implemented in response to the various

requirements of this part. This

prohibition includes similar language

found in existing § 107.25(f) that

prohibits the use of an airport-approved
41736 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

identification by any person unless it is

issued to that person. However, the

proposed language would expand the

prohibition to encompass any type of

intentional misuse, such as tampering,

compromise, or modification, of

security systems or the unauthorized

circumvention of these systems. Such

acts would include writing on walls or

doors the combination lock numbers

that provide access to critical security

areas or restricted operations areas,

temporarily or permanently disabling

electronic access systems, and loaning

of access or identification media which

would provide access to, and movement

within, security sensitive areas of an

airport without authorization.

Under part 108, the responsibility

rests with the air carrier for ensuring

that unauthorized items which may be

harmful to civil aviation or to the

traveling public do not get into the

sterile area. The FAA, accordingly,

believes that the current prohibition

found in existing § 107.21(a) against

persons introducing a deadly or

dangerous weapon, explosive, or

incendiary into sterile areas is more

appropriately located in part 108. The

FAA proposes transferring the existing

prohibition found in § 107.21(a) to

proposed part 108.

The risk to the traveling public

presented by the presence of a deadly or

dangerous weapon, explosive, or

incendiary, or destructive substance

should not be underestimated.

Paragraph (b) of this section, as

proposed, has been drafted to prohibit

the unauthorized possession of such

weapons or other dangerous items in

sterile areas, critical security areas, and

restricted operations areas. The current

rules refer to the carriage of ‘‘explosive,

incendiary, or deadly or dangerous

weapons’’ in various paces, including

existing § 107.21 and § 108.9. The

statute, however, refers to searching

persons and property for the presence of

a ‘‘dangerous weapon, explosive, or

other destructive substance.’’ (See 49

U.S.C. 44902) In order to make more

clear what items the air carriers search

for and what items are controlled in

various areas secured for the purposes

of part 108, the FAA proposes to refer

throughout the revised part to ‘‘deadly

or dangerous weapon, explosive,

incendiary, or other destructive

substance.’’ This change is proposed in

paragraph (b) of this section as well as

proposed §§ 108.103, 108.201, and

108.219. The FAA also will provide

guidance on destructive substances to

minimize confusion over the

applicability of the term ‘‘destructive

substance.’’

This section is also intended to

prohibit persons from conducting

unauthorized ‘‘tests’’ of air carrier

security systems by compromising or

circumventing any element of the

system. Proposed paragraph (c) would

allow for individuals authorized by the

Federal government, airport operator,

and air carrier to conduct tests and

inspections of security systems.

Provisions regarding the carriage of

firearms by law enforcement officers

and other authorized personnel found in

existing § 107.21(b) would be included

in proposed paragraph (d). Paragraph (d)

proposes that provisions of this section

that apply to firearms and weapons

would not be applicable to law

enforcement personnel, Federal Air

Marshals, and certain individuals

authorized in an airport security

program to carry a weapon, such as

armed guards protecting currency or

valuable shipments. This paragraph

would further exempt persons properly

transporting declared firearms under

proposed § 108.213 or hazardous

materials under 49 CFR part 175 from

firearms and weapons prohibitions.

Proposed paragraph (d)(7) also would

exclude from these prohibitions

weapons and firearms legally carried

aboard non-air-carrier aircraft, such as

general aviation pilots operating

personal aircraft and transporting

firearms in compliance with state and

local laws.

The concept of requiring persons to be

responsible for complying with security

measures was generally supported by

the ASAC, particularly the airport

operator representatives. Two ASAC

members, the Air Line Pilots

Association and the National Air

Transport Association, however,

expressed reservations about the

feasibility of enforcing such a

requirement and suggested that security

resources could be better used

elsewhere to achieve the same results.

Nevertheless, by promoting awareness

of security responsibilities, this

proposal also would address the

concerns raised by the DOT IG about

employee awareness of, and compliance

with, access control and challenge

procedures. Further, this proposed

section parallels efforts to require that

persons be accountable for their actions

related to the dissemination of sensitive

security information (62 FR 13736,

March 21, 1997).

Other federal regulations and statutes

may also contain applicable security

and safety responsibilities of persons,

including the following: proposed

§ 108.221, Access investigation;

proposed § 108.201 Screening of

persons and property and acceptance of

cargo; proposed § 108.213 of this part,

Carriage of weapons; part 191 of this

chapter, Protection of Sensitive Security

Information; 49 CFR part 175,

Transportation of hazardous materials;

49 U.S.C. 46302, regarding false

information involving aircraft piracy,

interference with flight crew members,

carrying a weapon, and other criminal

laws; and 49 U.S.C. 46303, regarding

carrying a weapon.

Subpart B—Security Program

Section 108.101 Adoption and

Implementation

As mentioned in the discussion above

under proposed § 108.5, proposed

§ 108.101 would be renumbered from

current § 108.5 and included under new

Subpart B, Security Program.

As discussed above, proposed § 108.1

would be revised to extend the

application of part 108 to include

private charter and helicopter

operations. The FAA proposes to

require helicopter operators to adopt

and implement a security program

under part 108 for the same type of

passenger operations that require an

airplane operator to adopt and

implement a security program. Private

charter operators also would be required

to adopt and implement a security

program for certain operations.

Currently, not all air carrier passenger

operations (including private charters

and helicopter operations) either

boarding passengers or deplaning

passengers through established sterile

areas are required to implement the

same security requirements to ensure

full compliance with security measures

protecting the security of the sterile

areas. Passengers embarking from, or

deplaning through, sterile areas from

private charters and helicopter

operations are subject to the security

program requirements of the air carrier

responsible for the security of the sterile

area. Security measures of screening

passengers from private charters and

helicopter operations interlining with

large carriers represent, however, only a

portion of the scope of security

measures needed to maintain the

security integrity of the sterile area or

the ramp area used by private charters

and helicopter operations. Private

charters and helicopter operations

assisted by large carrier screening and

escorting of their enplaning or

deplaning passengers through the sterile

area do not have to address other

security measures such as specialized

crew training, aircraft inspection

procedures, checked baggage acceptance

procedures, or procedures for escorting

prisoners, to name a few.
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41737

The ASAC’s Part 108 Working Group

recommended that the exclusion of allcargo helicopter, and private charter

operations from ‘‘security program

coverage’’ should be modified. The

operations of all-cargo air carriers and

helicopter operators should be allowed

to participate voluntarily in the security

program. The Part 108 Working Group

also observed that the original

justification for the differing

applicability of part 108 to private

charter vs. public charter was that

passengers traveling on private charters,

being brought together in a common

association (e.g., corporation,

professional sports team), did not

generate a security threat to the flight.

Accordingly, under the current part 108

definition, the Part 108 Working Group

indicated that application of a security

program was unnecessary for private

charters. The Part 108 Working Group

also commented that there have been no

‘‘incidents’’ to generate a change to part

108 applicability to private charters.

Other ASAC members commented that

private charters do not pose a security

concern and that security measures

should be commensurate with the

security threat.

The FAA believes that the security of

the sterile area cannot be compromised.

As previously cited above, the Part 108

Working Group noted that some

helicopter activities place operators in

direct contact with part 121 operations.

This occurs when helicopter passengers

are disembarked in the secure areas of

terminals and when helicopter operators

interline with large air carriers. Further,

the Part 108 Working Group expressed

belief that any operations that use

screening checkpoints should have

written and approved security programs

to accomplish that screening.

Accordingly, this notice proposes that

all air carriers that enplane or deplane

passengers through sterile areas would

be required to adopt and implement a

security program for those operations.

The fight performance (especially

range) of less-than-61 seat aircraft has

significantly improved since 1981,

which may make them more attractive

to hijackers. Further, the threat to U.S.

interests outside the U.S. potentially

affects the security risk to private

charter and less-than-61-seat operations.

This notice proposes, therefore, that

U.S. operators of private charter flights

with greater than 30 passenger seats to

any location and all operators regardless

of the seating capacity of the aircraft on

fights to, from, or between localities

outside the U.S. would be required to

adopt a security program. This proposal

is consistent with the International Civil

Aviation Organization’s (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. However, the

threat to such flights is not always of

sufficient level to require full security

measures to be taken. Accordingly, this

notice proposes that the requirement for

these carriers to screen passengers and

to secure aircraft be implemented only

when the Assistant Administrator for

Civil Aviation Security notifies the

carriers that there is a security threat to

that operation.

Section 108.103 Form, Content and

Availability

As mentioned in the discussion above

under proposed § 108.7, proposed

§ 108.103 would be renumbered from

current § 108.7 and included under new

Subpart B, Security Program. This

section proposes to modify the list of

items required in the security program.

Paragraph (b) proposes the inclusion

of procedures and a curriculum to

implement an individual accountability

compliance program. Through the

proposed individual accountability

compliance program, the air carrier

would ensure that each of its employees

and contractors are fully aware of their

personal accountability for control and

use of airport-approved identification

media. The program would enhance the

awareness of their employees and

contractors of the methods by which the

airport operator and the air carrier will

monitor compliance of persons with the

security requirements of part 108.

Additionally, this notice would require

that penalties be imposed on persons

who are not in compliance, those

penalties shall be levied in accordance

with the standards contained in the air

carrier’s approved security program.

This section also would require the

air carrier to designate an Air Carrier

Security Coordinator and the means by

which this person can be contacted on

a 24-hour basis. This proposal would

ensure that the FAA can contact a

responsible security official at the

corporate level whenever the need

arises.

Paragraph (c) proposes a change from

the current requirement that air carriers

maintain a copy of security documents

at each airport where security screening

is being conducted, to a requirement

that air carriers ensure the availability of

such documents at each airport served.

The FAA knows that certain types of

operations, such as charter flights,

present logistical problems to the air

carriers if they have to maintain a copy

of their security program at the airport,

as currently required under part 108, as

they may not have a station established

at that specific airport. Accordingly, the

proposed requirement would permit the

air carrier to have the necessary

documents available for electronic

transmission from another location or

the necessary documents onboard the

aircraft.

Section 108.105 Approval and

Amendments

Under this proposal, existing § 108.25

entitled ‘‘Approval of security programs

and amendments’’ would be

renumbered as new § 108.105 under

new Subpart B, Security Program.

Proposed § 107.105 prescribes the same

approval and amendment procedures.

To provide for the timely response to

a security threat to civil aviation, and in

accordance with existing practice,

proposed § 108.105 would delegate

approval of security programs or

amendments to the Assistant

Administrator for Civil Aviation

Security. To formalize the existing

practice, emergency amendments to

approved air carrier security programs

would also be issued by the Assistant

Administrator. The notice proposes to

expand this section to include greater

specificity and similarity in the

procedures for the amendment process

for both part 108 and part 107 of this

chapter.

In addition to prescribing procedures

for approval of security programs

required under existing § 108.25,

proposed paragraph (a) provides for the

Administrator to dispose of any petition

within 30 days of receipt.

Paragraph (b) of this new section

would prescribe procedures for an air

carrier to request an amendment to its

air carrier security program now

covered under existing § 108.25.

Currently § 108.25(c) states that the FAA

will either approve or deny the request

within 15 days. The proposal extends

this time period to provide the FAA

with a more realistic period in which to

conduct a comprehensive review of the

proposed amendment to an air carrier

security program. Under this proposal,

the FAA would have 45 days after

receipt for approval or denial of the

proposed amendment. The proposed

rule also notes that the amendment

process may take longer than 45 days if

the proposed amendment is modified or

denied. These language changes are

intended to allow extra time for the

FAA to discuss these changes with the

air carriers.

Retention of the FAA’s existing

procedures to amend an air carrier

security program is proposed in

paragraphs (c) and (d). Two significant

changes, however, are being proposed to
41738 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

the existing procedures of § 108.25: (1)

A new requirement for air carriers to

submit petitions for reconsideration no

later than 15 days before the effective

date of the amendment, and (2) a

clarification that a petition for

reconsideration does not stay the

effective date of an emergency

amendment. These changes also are

proposed to ensure a timely and

efficient exchange of information.

The ASAC recommended that any

amendment issued by the FAA to an air

carrier security program include an

expiration date. The committee was

concerned that the FAA may use the

amendment process to circumvent the

rulemaking process and suggested that

the FAA be required to initiate a formal

rulemaking if it wished the provisions

of the amendment to continue after the

expiration date.

When there is information that cannot

be discussed in a public forum,

amendment of the security program

provides a means to impose and

implement a new requirement. The FAA

does not believe it would be in the best

interest of the traveling public to require

a rulemaking for every amendment to an

air carrier security program, but will

establish internal procedures to

periodically review amendments to

ensure that their inclusion in the

security program, rather than part 108,

is appropriate.

Subpart C—Operations

Section 108.201 Screening of Persons

and Property, and Acceptance of Cargo

The White House Commission on

Aviation Safety and Security

recommended, and the Federal Aviation

Reauthorization Act of 1996 required,

that the FAA certify screening

companies providing security screening.

This proposal does not respond to these

mandates, however, as noted above, the

FAA has issued an Advance Notice of

Proposed Rulemaking on certification of

screening companies.

Air carriers currently air required to

screen all persons entering a sterile area

through a screening checkpoint. As

mentioned in the discussion above

under proposed § 108.9, proposed

§ 108.201 would be renumbered from

current § 108.9 and included under new

Subpart C, Operations. It is also

proposed to change the title of this

section from ‘‘Screening of passengers

and property’’ to ‘‘Screening of persons

and property, and acceptance of cargo’’

to indicate that all persons, and not just

passengers, are required to be screened

as they enter the sterile area through a

screening checkpoint.

To facilitate the transit of air carrier

employees who have already been

subjected to other security systems, the

proposed section would provide that

persons who are authorized unescorted

access to an airport critical security area

may enter a sterile area from a public

area using security procedures proposed

in § 107.207, ‘‘Access control systems’’

under the parallel NPRM that revises

part 107. The proposed language of

§ 107.207 would establish performance

standards for access control points that

are now found in existing § 107.14.

Proposed § 108.201(b) would require

the air carrier to ‘‘detect and prevent’’

instead of the current requirement to

‘‘prevent to deter,’’ the carriage aboard

aircraft or entry into a sterile area of any

explosive, incendiary, deadly or

dangerous weapon, or destructive

substance on or about individuals or

their accessible property. The proposed

language more definitively describes the

air carriers’ duties regarding screening

of persons and property. It is based on

existing procedures under the air carrier

approved security programs that

basically require the air carrier to

‘‘detect and prevent’’ or be subject to

compliance enforcement action.

The requirements proposed in

§ 108.201(d),(e), and (f) would transfer

unchanged from existing §§ 107.20 and

107.21. These existing sections require

the individual to submit to screening of

their person and property and restrict

the carriage of firearms into sterile areas

to those persons required to have the

weapons in performance of their duties,

law enforcement officers traveling

armed aboard aircraft, and persons

specifically authorized under an

approved security program. Since

control of the sterile area and screening

are the air carriers’ responsibilities,

these requirements are more appropriate

to this part than part 107.

The ASAC’s Part 107 Working Group

recommended that the part 107

provision not be transferred to part 108

insofar as the ‘‘objective of this

prohibition is the protection of sterile

areas, rather than air carriers. . .’’ The

Part 108 Working Group did not

comment on this issue.

The requirements that are proposed to

be moved from part 107 to part 108

apply to individuals. They deal with

activity at the screening checkpoint, in

the sterile area, and aboard the aircraft.

Because the air carriers primarily are

responsible for these areas, the FAA

believes that it is appropriate to locate

the rules applying to individuals along

with the rules applying to the air

carriers.

Proposed § 108.201(h) would require

air carriers to prevent the carriage of any

explosive or incendiary on board an

aircraft in any form. Although current

security procedures applicable to the

acceptance of cargo for transport on

board passenger aircraft are contained in

the air carriers’ approved security

program, the basic requirement to apply

security measures to cargo is not

currently in the rule and this proposal

would correct that omission.

Section 108.203 Use of Metal

Detection Devices.

Metal detection devices (MDD’s)

(such as walk-through metal detectors)

have long been an integral part of the

passenger screening system. Testing,

calibration, and operational

requirements for MDD’s are currently

incorporated in the air carrier’s security

program. This proposed new section

would be included under new Subpart

C, Operations, and would require the air

carrier to use equipment that meets the

calibration standard set by the FAA and

to conduct screening with MDD’s in

accordance with its approved security

program. This section would not change

the current security program

requirements.

Section 108.205 Use of X-ray Systems

Under this proposal, existing § 108.17

entitled ‘‘Use of X-ray systems’’ would

be renumbered to proposed § 108.205

and included under new Subpart C,

Operations.

In proposed § 108.205, the FAA

would update the technical standards

for X-ray systems. The reference

incorporating American Society for

Testing and Materials (ASTM) Standard

F–792–82 would be updated to reflect

the current ASTM Standard, F–792–88

(Reapproved with an amendment in

1993). In addition, references to Food

and Drug Administration regulations

governing cabinet X-ray systems

manufactured before April 25, 1974, are

no longer necessary and, therefore,

would be deleted.

Under this proposal, application of

§ 108.205 would be extended to X-ray

systems under the air carrier’s

operational control at airports outside

the U.S. as currently required in

security programs. Air carriers at

designated foreign locations are now

required to perform X-ray inspection of

baggage and suspect items. X-ray

systems used for this purpose should

meet the same standards as X-ray

systems used to inspect baggage in the

U.S. to ensure that the prescribed

security measures are equally effective.

X-ray systems owned and/or operated

by government authorities or

government-mandated security

companies at foreign airports and not
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41739

under the operational control of the air

carrier would not be subject to the

proposed regulation.

The FAA is proposing to omit the

current requirement in § 108.17(a)(4)

that the air carrier issue to each operator

of an X-ray system an individual

personal dosimeter to measure exposure

to X-rays, and evaluate it every month.

In 1975 the FAA first adopted rules

regarding the use of X-ray machines to

screen carry-on baggage. 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 impact of these

systems. Although the experts who

submitted comments did not find it was

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 determination

of those agencies with the expertise.

The Food and Drug Administration

regulates cabinet X-ray machines of the

type used under part 108. Those rules,

found at 21 CFR 1020.40, do not require

that operators use dosimeters. The

Occupational Safety and Health

Administration has regulations for

protection of persons in areas with

certain levels of ionizing radiation, but

these rules do not apply to low levels

involved with the cabinet X-ray systems

used under part 108. Some states may

have regulations regarding the use of Xray equipment, and may require the use

of dosimeters.

The X-ray machines used under part

108 are required to be tested regularly.

Further, the X-ray machines used today

use lower levels of radiation than they

did when the FAA rules were first

adopted. Since 1975 the FAA has been

aware of no incident in which a person

received excess radiation from X-ray

machines used for screening under an

FAA-approved program.

Accordingly, it does not appear that

there is a need for the FAA to require

the operators of X-ray equipment to use

dosimeters, and the FAA proposes to

remove this requirement. Air carriers

would still be required to comply with

any requirements of another Federal

agency or state government regarding

the use of dosimeters.

This notice proposes the deletion of

the term ‘‘passengers’’ under

§ 108.205(e) and substitutes the term

‘‘persons’’ in recognition that, during

daily operations, passengers are not the

only category of individuals to enter a

sterile area through a screening

checkpoint with an X-ray system.

Section 108.207 Use of Explosives

Detection Systems

Under this proposal, existing § 108.20

entitled ‘‘Use of Explosives Detection

Systems’’ would be renumbered as new

§ 108.207 and included under new

Subpart C, Operations. Other than

renumbering this section from § 108.20,

replacing the reference to § 108.25 with

§ 108.105, and replacing ‘‘certificate

holder’’ with ‘‘air carrier,’’ no further

revisions would be made to this section.

Section 108.209 Employment

Standards for Screening Personnel

Under this proposal, existing § 108.31

entitled ‘‘Employment standards for

screening personnel’’ would be

renumbered as new § 108.209 and

included under new Subpart C,

Operations.

This section proposes that, in the

event the air carrier is unable to

implement this section for screening

functions outside the U.S., the air

carrier shall notify the Administrator of

those air carrier stations so affected to

facilitate resolution of compliance

issues with this section of part 108.

Section 108.211 Law Enforcement

Personnel

Under this proposal, existing § 108.15

entitled ‘‘Law Enforcement Officers’’

would be retitled ‘‘Law enforcement

personnel,’’ renumbered as new

§ 108.211, and included under new

Subpart C, Operations.

As mentioned in the discussion of

proposed § 108.1, this notice proposes

to extend the applicability of part 108 to

private charter operations when

passengers are enplaned from or

deplaned into sterile areas, and remove

the exclusion of applicability to

helicopter operations, Accordingly, part

108 air carriers operating passenger

service or charter passenger operations

at airports not governed under proposed

§ 107.217 would be required, in the

absence of the part 107 airport operator

providing law enforcement support, to

provide for law enforcement personnel

in a manner adequate to support its

security program.

This notice also proposes extending

the applicability of proposed § 108.101,

under certain circumstances, to

scheduled passenger or public charter

operations with an aircraft having a

passenger seating configuration of less

than 61 seats engaged in operations to,

from, or outside the U.S.

The FAA is aware that screening is

not required for certain operations

under proposed § 108.101(a).

Nevertheless, in order to implement

certain security measures under security

threat conditions, which could include

screening, the requirement of the air

carrier to provide for law enforcement

support under this section would be

revised, Under this proposed section,

the requirement for air carriers to

provide for law enforcement personnel,

in a manner adequate to support its

security program, would be extended to

international passenger services of lessthan-61-seat aircraft that operate under

proposed § 108.101(a) at airports not

governed under proposed § 107.217 of

this chapter.

Section 108.213 Carriage of Weapons

Under this proposal, existing § 108.11

entitled ‘‘Carriage of Weapons’’ would

be renumbered as new § 108.213 and

would be included under new Subpart

C, Operations.

The revised procedure for carrying

weapons aboard aircraft by authorized

law enforcement personnel proposed in

this section is intended to reduce the

number of weapons accessible to

passengers aboard aircraft. This notice

proposes adopting into part 108 the

ASAC’s recommendations to the FAA

on this topic that the number of firearms

authorized to be carried should be

reduced to the minimum necessary for

law enforcement personnel to perform

their duties.

Only those persons performing

official duties that meet the ‘‘need’’

criteria described below would be

permitted to carry firearms aboard the

aircraft. The criteria of need to carry

firearms aboard aircraft are defined in

proposed § 108.213(a)(2) as:

(i) Providing protective escort

(assigned to a principal or an advance

team).

(ii) Conducting hazardous

surveillance operation.

(iii) Providing prisoner escort.

(iv) Status as an FBI Special Agent.

(v) Traveling as an FAA Federal Air

Marshal on mission status.

(vi) Traveling as a law enforcement

officer on official duties required to

report to a new location armed and

immediately prepared for duty.

Under proposed § 108.213(a)(4), all

such persons flying armed would be

required to complete a standard training

program. The training program was

recommended by the ASAC as a

requirement; a standard course of about

2 hours for initial training. Training

would cover the basic procedures for

flying armed and the concerns

associated with carriage of a firearm

aboard an aircraft.

Further, all such persons flying armed

would be required to be a Federal law

enforcement officer or a ‘‘full time’’

municipal, county, or state law
41740 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

enforcement officer. The term ‘‘full

time’’ is taken to mean that the primary

source of earned remuneration by the

person is for services they have

provided in support of law enforcement

at the municipal, county, or state level.

The phrase ‘‘full-time employee’’ is

used to preclude any person from flying

as an ‘‘armed law enforcement officer’’

when that person does not receive

remuneration from the government

entity represented and does not meet, or

is not required to meet, the training

standards of a full-time, commissioned

law enforcement officer of that

department.

To the FAA’s knowledge, all full-time,

state, and local law enforcement officers

are required to have extensive stateapproved training. However, some state

and local governments have reserve

officers, special police, special deputies,

or other non-full-time officers who may

not be required to have the same

extensive training. The FAA believes

that armed persons on aircraft should

have the extensive training that is

required of full-time law enforcement

officers to provide the most assurance

that they can carry out their duties in

the most professional and safe manner.

Persons flying armed also would be

required to be ‘‘currently trained and

certified’’ and to complete a standard

training course. In this regard, ‘‘trained

and certified’’ is used to mean that an

individual has satisfactorily completed

the training required by the employing

agency or department and, in the case

of state and local officers, completed the

training specified by the responsible

commission on Peace Officers Standards

and Training. Moreover, the individual

also should have satisfactorily met all

specific continuing education and

training requirements to currently

enforce the criminal laws of the

jurisdiction in which employed.

The process currently used by armed

individuals to board flights is made

easier when such individuals submit the

existing form to the air carrier to

indicate that they will be traveling

armed. It is proposed to require the air

carrier to provide the information

contained in this form (e.g., identify of

armed individuals, authorization to fly

armed, itinerary, completion of the FAA

course, ‘‘Law Enforcement Officers

Flying Armed’’) to the flight crew of

each additional connecting flight on the

armed individual’s itinerary.

Under proposed § 108.213(a)(4), nonfederal law enforcement personnel

would also be required to submit an

original letter which is signed by an

authorizing official from their employer,

confirms to the air carrier the need to

travel armed, identifies the trip

itinerary, and provides a statement that

the person has completed the training

program ‘‘Law Enforcement Officers

Flying Armed’’ as required by the FAA.

The proposed regulation would also

require the air carrier, in proposed

§ 108.213(a)(7)(ii), to ensure that the

armed person has fully completed and

signed a form prior to boarding or

entering a sterile area which states that

the person has completed the training

program ‘‘Law Enforcement Officers

Flying Armed’’ as required by the FAA.

It is proposed, in § 108.213(b), that for

flights where screening is not

conducted, an individual cannot carry a

deadly or dangerous weapon on board

an aircraft. This restriction would not

apply to law enforcement personnel of

the U.S., or a State or political

subdivision of a State, or of a

municipality, who are authorized by his

or her agency to have the weapon in

connection with his or her duties, have

completed the training program

required by the FAA, and have notified

the air carrier of the intent to fly armed

prior to boarding the flight.

The FAA believes that a person flying

with a weapon should not be under the

influence of alcoholic beverages which

could impair his or her judgment.

Accordingly, this notice, in § 108.213(c),

proposes to require that no person who

has consumed an alcoholic beverage

during the previous 8 hours may fly

with a weapon accessible to that person.

Similarly, the air carrier would not be

permitted to serve alcohol to the person

and the armed person would not be

permitted to consume it on board.

The notice proposes, in § 108.213(d),

that armed individuals would be

required to keep their weapon

concealed and out of view, either on

their person or in their immediate reach

if carried in any type of case, pouch, or

container. A weapon may not be placed

in overhead storage bins. This would

ensure that the armed individual would

remain in control of the weapon, and

keep it out of the hands of unauthorized

persons.

This notice also proposes, in

§ 108.213(f), that firearms tendered for

transport in checked baggage shall be

carried in a locked container that is

hard-sided. The use of a hard-sided

container to transport a firearm will

protect the firearm from being damaged,

inhibit the identification of baggage

carrying firearms, and reduce the

opportunity for unauthorized access to

the firearm.

Proposed paragraphs (e) and (g) are

not new and reflect regulatory

requirements found under existing

§ 108.11(f) and (c), respectively.

Section 108.215 Carriage of Passengers

Under the Control of Armed Law

Enforcement Escorts

Under this proposal, existing § 108.21

entitled ‘‘Carriage of passengers under

the control of armed law enforcement

escorts’’ would be renumbered as new

§ 108.215 under new Subpart C,

Operations.

Some confusion has arisen from the

existing regulations about escorting

prisoners. Air carriers have established

their own policies on prisoner transport.

Some air carriers require the prisoner to

be restrained during the flight; others

will not permit this practice. While

these varying policies have complied

with the requirements of this part, law

enforcement officers have not been sure

about the various air carrier procedures.

The FAA proposes to provide more

detailed requirements in part 108.

Proposed § 108.213 would apply to

armed escorts, of course. Proposed

§ 108.215 would provide additional

requirements for the escort of prisoners.

The number of escorts required for

prisoner transport is determined by the

risk presented by the person being

escorted. Currently, a prisoner

considered a ‘‘maximum risk’’ by the

agency directing the transportation of

the prisoner, requires two escorts.

‘‘Maximum risk’’ has no standard

definition. The FAA proposes, in

§ 108.215(a)(2), to adopt the ASAC’s

recommendations and replace the term

‘‘maximum risk’’ with the term ‘‘high

risk.’’ A prisoner is considered a ‘‘high

risk’’ if the prisoner is an escape risk, or

is charged with, or convicted of, a

violent crime. The determination that a

prisoner is ‘‘high risk’’ is made by the

agency directing the transportation of

the prisoner. The FAA believes that this

change of definition will lead to

consistent interpretation by the law

enforcement community.

This section proposes that a person

who is a ‘‘high risk’’ shall be under the

control of at least two armed escorts. In

addition, such individuals’ use of hands

would be restrained by an appropriate

device which is attached to a separately

locked waist restraint device. To

provide for emergency egress, leg irons

would not be permitted.

This section proposes that prisoners

not considered ‘‘high risk’’ would be

termed ‘‘low risk.’’ A ‘‘low risk’’

prisoner would be under the control of

at least one armed law enforcement

escort. No more than two of these

prisoners would be escorted by a single

armed law enforcement officer.

Moreover, this section proposes, in

paragraph (a)(11)(i), that, as with ‘‘high

risk’’ prisoners, ‘‘low risk’’ prisoners’
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41741

hands would also be restrained with an

appropriate device attached to a

separately locked waist restraint device,

allowing minimum movement of the

prisoners’ hands. The FAA believes that

this type of a restraint, and not leg irons,

for the ‘‘low risk’’ prisoner would not

compromise the safety of all other

passengers on the flight or the

requirements of the air carrier to be able

to conduct an emergency evacuation

without undue interference.

Currently, part 108 requires that the

seating of each prisoner under the

control of law enforcement personnel

must be placed in the rear-most

passenger seat when boarding at the

airport where the flight originates. Air

carrier representatives to the ASAC have

noted that, under part 108 requirements,

passenger seating assignment problems

continue to occur for flights involving

the full itinerary of a person under law

enforcement escort.

Accordingly, in paragraph (a)(11)(iii),

the FAA proposes to change the seating

requirement for prisoners under escort

and provide for seating the prisoner in

the rear-most seat available. This will

permit the air carrier latitude in

assigning seats to escorts and prisoners

under their control throughout the flight

itinerary of the escorted prisoner.

To further ease the implementation of

the air carrier logistics for the transport

of escorted prisoners, and minimize the

opportunity or occasion for the prisoner

to create a security risk to other

passengers, paragraph (a)(4) proposes

that the armed law enforcement

escorts(s) notify the air carrier at least 24

hours before the scheduled departure, or

as far in advance as possible, and notify

the air carrier of any preexisting medical

conditions of the prisoner generating

unusual behavior that could pose a

threat to the security of the flight.

Section 108.217 Transportation of

Federal Air Marshals

Under this proposal, existing § 108.14

entitled ‘‘Transportation of Federal Air

Marshals’’ would be renumbered as new

§ 108.217 and included under new

Subpart C, Operations.

Existing § 108.14 provides authority

for the transportation of Federal Air

Marshals (FMA’s) on designated flights.

This has been a requirement since 1985

following the terrorist attack on TWA

flight 847. This notice proposes to

prohibit divulging the identify, seating,

and purpose of FAM’s to any person

who does not have an operational need

to know.

The FAA believes that the active

flight crew should be informed of the

presence of FAM’s on a designated

flight. Moreover, FAM’s are made aware

of all other law enforcement personnel

flying armed on a designated FAM

flight. Proposed § 108.213 (a)(6) and

(a)(7) would not require that persons

flying armed be informed of the FAM’s

presence, although FAM’s would be

informed of the presence of other armed

persons. The FAA strongly believes that

the protection offered by FAM’s is

greatly reduced when their presence

and location aboard the aircraft is

revealed to those who do not have a

need to know.

Under the existing authority of the

Administrator and consistent with

current practice, this notice proposes to

require, under § 108.217(b), the

transportation of FAM’s on another

flight designated by the FAA when a

previously designated flight is canceled.

To ensure the effectiveness of FAM

missions, the proposal would make

clear that the FAM’s would be permitted

to observe the preflight searches of

aircraft for weapons and explosives.

Section 108.219 Security of Aircraft

and Facilities

Under this proposal, existing § 108.13

entitled ‘‘Security of Airplanes and

Facilities’’ would be renumbered as new

§ 108.219 and included under new

Subpart C, Operations.

Controlling access to proposed critical

security areas is essential to security.

Under existing § 108.13, the air carrier

is required to prohibit unauthorized

access to its airplanes. This section

proposes to require the air carrier to

prevent access to any area it controls for

security purposes, in addition to its

aircraft.

This notice proposes incorporating in

part 108 several requirements

previously implemented in air carrier

security programs. Accordingly, it is

proposed that the air carrier must

prevent, rather than prohibit, access to

areas controlled by the air carrier under

an approved airport security program.

The proposed rule includes language

requiring the air carrier to prevent

access by unauthorized persons to

baggage or cargo tendered for transport

aboard a passenger aircraft. Security

measures applicable to cargo

transported on passenger aircraft are

currently contained in the air carrier’s

approved security program. This

proposed requirement to include

security measures in air carrier’s

procedures for the acceptance and

transport of cargo reflects current

practices and requirements

implemented in air carrier security

programs in 1994.

The proposed rule would add a new

paragraph (g) to proposed § 108.219 to

require air carriers to comply with the

vehicle identification procedures

contained in the airport operator’s

approved security program. Vehicle

identification procedures are integral to

controlling the movement in the

restricted operations area. The proposed

language in this section will require the

air carrier to be in compliance with

proposed § 107.211 which regulates the

issuance and control of airport operatorapproved personnel and vehicle

identification systems.

Section 108.221 Employement History,

Verification, and Criminal History

Records Checks

The White House Commission on

Aviation Safety and Security

recommended, and the Federal Aviation

Reauthorization Act of 1996 required,

that the FAA adopt rules to provide for

expanded background checks and

criminal history records checks of

person with responsibilities for

screening passengers and property. On

March 14, 1997, the FAA issued a

Notice of Proposed Rulemaking to

respond to these mandates (62 FR

13262, March 19, 1997). The comments

received in response to that notice will

be considered in developing a final rule.

However, while that notice refers to

unescorted access to the SIDA, under

this proposal the term SIDA would no

longer be used. It is proposed instead

that the rule would refer to unescorted

access to critical security areas.

Section 108.223 Personnel

Identification System

This new section to part 108 proposes

that air carriers establish and implement

a personnel identification system.

The problem centers on the lack of

standard specific audit and loss control

procedures for the identification media

used by employees of the air carriers.

ASAC members offering comment on

the FAA discussion paper agreed that

differing methods for control of

identification media issued by the air

carriers to their employees has the

potential to create a security problem.

Accordingly, the ASAC members

expressed the belief that regulations

should require standard and specific

audit/loss control procedures for

identification issued by the air carrier.

This notice proposes that air carriers

establish a personnel identification

system mirroring the standards for

accountability of airport-issued

identification media. This new section

to part 108 would require the air carrier

to use a personnel identification system

for its flight and cabin crewmembers

that provides for the following: Issuance

of the identification media only after

satisfactory completion of background
41742 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

checks; control and accountability

standards for an identification media

established in a FAA-approved security

program; accurate identification and

expiration dating of the identification

media which can be readily recognized

as current; and the periodic review and

recertification of the identification

media to determine its status for

renewal or forfeiture.

The FAA believes that these proposed

requirements for air carrier-issued

identification media will meet the same

standards as those identification control

procedures currently being

implemented for airport operators and

will minimize the opportunity for a

breach of air carrier security procedures.

Section 108.225 Security Coordinators

and Crewmembers, Training

This new section proposes to

consolidate into new Subpart C,

Operations, elements of existing training

requirements for security coordinators

and crewmembers found under current

§§ 108.23 and 108.29. Sections 108.23

and 108.29 currently govern security

training and knowledge of provisions of

security-related information and are

directed toward flight crewmembers and

security coordinators. Proposed

§ 108.225 would incorporate the

regulatory requirements for flight

crewmembers and security coordinators

currently contained in §§ 108.23 and

108.29 and would not otherwise change

the regulatory requirements for security

coordinator and crewmember training.

Section 108.227 Training and

Knowledge of Persons With Securityrelated Duties

The FAA requires extensive training

directed in air carrier security programs

for personnel who conduct screening,

perform extraordinary security

procedures, or who supervise screening

and extraordinary measures.

This notice proposes to consolidate

the training elements for security

personnel of existing §§ 108.23 and

108.29 into new Subpart C, Operations,

under proposed § 108.227. This new

section would expand personnel

training requirements in part 108 to

require air carriers to train any person

performing security functions in

accordance with their approved security

programs. Any individual performing a

security function should have the ability

and knowledge to perform that function

properly and effective training programs

require qualified instructors with

thorough knowledge of the subject

matter. This notice proposed that

required security training be approved

by the Administrator.

The FAA proposes to give air carriers

some flexibility in establishing security

training schedules to facilitate the

integration of security training with

other required training. A 1-calendarmonth grace period would be

established to facilitate the scheduling

of training. This would permit the air

carrier to provide training from 1 month

before to 1 month after the calendar

month in which that training was due,

and the trainee would receive credit for

the training as if it has been provided

during the month due.

Subpart D—Threat and Threat

Response

Section 108.301 Security Coordinators

Under this proposal, current §§ 108.10

and 108.29 would be consolidated into

new Subpart D, Threat and Threat

Response, under proposed § 108.301.

This proposed section would

consolidate the duties and

responsibilities of the Ground Security

Coordinator and the In-flight

Coordinator from existing §§ 108.10 and

108.29. This section also would require

the air carrier to designate an Air Carrier

Security Coordinator to ensure that the

FAA can contact a responsible security

official at the corporate level whenever

the need arise.

Currently, § 108.29 (a)(2)(ii) provides

for the Ground Security Coordinator to

immediately initiate corrective action

for noncompliance. At foreign airports,

the air carrier may not be performing all

security measures and may be unable to

achieve corrective action. Under this

proposal, where security measures are

provided by a host government agency

or contractor, the air carrier shall notify

the Administrator for assistance in

resolving noncompliance issues. The

Administrator could then work with the

host government to address the issues.

Section 108.29(b) states that the

requirements of § 108.29(a), regarding

the duties of the Ground Security

Coordinator, apply to security functions

performed by both direct employees and

contract employees of the air carrier.

The proposed section would omit this

as unnecessary. The air carrier is

responsible for carrying out various

security duties, and is responsible for

managing the employees who do so

whether they are direct or contract

employees.

Section 108.303 Bomb or Air Piracy

Threats

Under this proposal, existing § 108.19

entitled ‘‘Security threats and

procedures’’ would be renumbered as

new § 108.303 under new Subpart D,

Threat and Threat Response. The title of

proposed § 108.303 would be changed

to ‘‘Bomb or air piracy threats.’’

Air carriers are required to conduct a

search after receiving a specific and

credible bomb threat and the airport

operator is responsible for law

enforcement support. To ensure proper

coordination, this notice would include

the existing air carrier security program

requirement that the air carrier notify

the airport operator immediately of a

specific and credible bomb threat to its

aircraft or ground facilities.

Additonally, the air carrier would be

required, under this proposed section,

to deplane all passengers from a

specifically threatened aircraft to ensure

their safety and a more effective search

of the aircraft. The air carrier’s security

experts, generally in consultation with

the FAA and other government entities,

evaluate threat information against

specific FAA-established criteria to

determine specificity and credibility of

the threat.

Current rules do not address threats

made against a ground facility (other

than as part of a threat to a flight).

Proposed paragraph (c) would also

include requirements for responding to

a specific and credible threat against a

specific ground facility. This could

include informing all other air carriers

at the facility and conducting a security

inspection.

The FAA recognizes that local,

municipal, or State ordinances may

impose upon air carriers or airport

operators other reporting requirements

for dealing with bomb or air piracy

threats. The proposed FAA requirement

that the air carrier report to the airport

operator only specific and credible

bomb threats to its aircraft or its ground

facility would not absolve any air carrier

from its responsibilities regarding the

reporting of bomb or air piracy threats

under local, municipal, or State

regulations or ordinances.

Section 108.305 Security Directives

and Information Circulars

Under this proposal, existing § 108.18

entitled ‘‘Security Directives and

Information Circulars’’ would be

renumbered to new § 108.305 under

new Subpart D, Threat and Threat

Response.

The FAA has found that, in some

instances, valuable time has been lost by

air carriers not receiving Security

Directives in a timely manner. Currently

the FAA requires air carriers to

acknowledge receipt of Security

Directives within 24 hours. However,

that leaves too large a time within

which the FAA may not be aware that

air carrier personnel have actually

received the security Directive. To
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41743

assure that Security Directives are

received promptly, the FAA proposes to

require air carriers to verbally

acknowledge receipt of Security

Directives immediately and to follow up

with written confirmation within 24

hours. This will ensure that the FAA

knows that the timely delivery of

critical security information to air

carriers has occurred.

Air carriers currently are required to

specify the method by which they have

implemented the measures in the

Security Directive. The FAA proposes

that the air carrier also submit to its

Principal Security Inspectors copies of

written measures/implementing

procedures issued to their stations. This

proposal will assist the FAA in

determining that the air carrier fully

understands the security requirements

in the Security Directive and that the

proposed implementation is correct.

The proposed measures also would

modify the existing Security Directive

process. Existing part 108 provides that

the air carrier shall specify, not later

than 72 hours after delivery of a

Security Directive, the method by which

the measures in the Security Directive

‘‘have been implemented,’’ unless the

Security Directive provides a different

time. This appears to assume that,

within 72 hours after receipt of the

Security Directive, procedures have, in

fact, been implemented. However, if the

Security Directive does not require

implementation within 72 hours, it is

not clear from the existing rule when

the implementation methods must be

provided to the FAA. The proposed rule

would make clear that, unless the

Security Directive provides otherwise,

within 72 hours after receipt of the

Security Directive, the air carrier would

provide the FAA the implementation

methods that are either in effect or will

be in effect when the Security Directive

is implemented. In response, the FAA

would either approve the air carrier’s

proposed alternative measures or notify

the airport operator to modify the

alternative measures to comply with the

requirements of the Security Directive

within 48 hours after receiving

proposed alternative measures.

Moreover, language is proposed

regarding those instances when the air

carrier is compelled to submit, for

approval by the Administrator,

alternative measures for compliance

with a Security Directive. Under the

proposed language, the Administrator

would either approve the air carrier’s

proposed alternative measures or notify

the air carrier to modify the alternative

measures to comply with the

requirements of the Security Directive

within 48 hours after receiving the air

carrier’s proposed alternative measures.

Section 108.307 Security Contingency

Plan

Contingency plans are an existing part

of airport and air carrier security

programs. They contain security

measures that can be immediately and

flexibly applied to counter threats that

arise quickly. In the interest of security,

the security-sensitive details of the

contingency plan cannot be included in

a public regulation, but proposed new

§ 108.307 would include in the

proposed rule a 1987 security program

amendment (amended in 1994)

requiring air carriers and airport

operators to have and implement a plan.

An amendment to the approved air

carrier standard security program

(March 1994) required air carriers to

also have and implement a plan.

The application of contingency

measures in response to the Persian Gulf

War provided valuable lessons on

contingency planning and the FAA used

this information to make changes to air

carrier and airport security programs.

Recently, the FAA and the air carriers

thoroughly reviewed these plans to

incorporate changes and ‘‘lessons

learned’’ from response to the elevated

threat during the Persian Gulf War. The

method for implementation of these was

modified to allow for a greater degree of

flexibility, and new test procedures also

were adopted. The ASAC endorsed the

final product of this effort and

supported the codification of

contingency plan requirements for this

proposed revision of part 108.

This proposed new section would

require air carriers to implement FAAissued contingency measures contained

in their security programs when

directed by the Administrator. It also

proposes that air carriers test these

contingency plans to ensure that all

parties involved are aware of their

responsibilities and that information

contained in the plan is current. Air

carriers also would be required to

participate in airport operator’s tests, to

ensure that they understood how to

respond to contingencies at each airport.

Cross Reference

To identify where present regulations

would be relocated in this proposed

rulemaking, the following crossreference list is provided:

CROSS REFERENCE TABLE

Old section citation New section

citation

108.1 ....................................... 108.1

CROSS REFERENCE TABLE—

Continued

Old section citation New section

citation

108.3 ....................................... 108.3

108.5 ....................................... 108.101

108.7 ....................................... 108.103

108.9 ....................................... 108.201

108.10/.29 ............................... 108.301

108.11 ..................................... 108.213

108.13 ..................................... 108.219

108.14 ..................................... 108.217

108.15 ..................................... 108.211

108.17 ..................................... 108.205

108.18 ..................................... 108.305

108.19 ..................................... 108.303

108.20 ..................................... 108.207

108.21 ..................................... 108.215

108.23/.29 ............................... 108.225/227

108.25 ..................................... 108.105

108.27 ..................................... 108.5

108.29/.23 ............................... 108.225

108.31 ..................................... 108.209

108.33 ..................................... 108.221

N/A .......................................... 108.203

N/A .......................................... 108.223

N/A .......................................... 108.7

N/A .......................................... 108.9

N/A .......................................... 108.307

International Civil Aviation

Organization and Joint Aviation

Regulations

In keeping with U.S. obligations

under the Convention on International

Civil Aviation, it is FAA policy to

comply with ICAO Standards and

Recommended Practices to the

maximum extent practicable. As

mentioned in the section-by-section

analysis of § 108.101 above, this

proposal is consistent with the ICAO

security standards. As discussed above

in the ‘‘Section-by-Section analysis’’

under § 108.101, 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 diffences that this proposal

would present if adopted. Any

differences that may be presented in

comments to this proposal, however,

will be take into consideration.

Paperwork Reduction Act

In this NPRM, Aircraft Operator

Security/Part 108 Revision, proposed

§§ 108.5, 108.103, 108.105, 108.205,

108.227, 108.303, and 108.305 contain

information collection requirements. 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.

The information to be collected is

needed to allow air carriers with
41744 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

approved security programs to check

radiation leakage on X-ray equipment

used for property security screening at

least annually, to report aircraft piracy

as part of the required security program,

and to maintain security training

records.

The estimated annual reporting and

recordkeeping burden hours is

estimated to be 8121, and is broken

down as follows:

(1) Reporting and recordkeeping

requirements for the training records for

crewmembers, security coordinators,

and individuals performing securityrelated function—24 hours for each part

108 air carrier operator.

(2) Preparation of necessary air carrier

standard security program

implementing documentation—6 hours

for each part 108 air carrier operator.

(3) Maintaining copies and

availability of the security programs for

use by civil aviation security inspectors

of the FAA upon request—1 hour for

each part 108 air carrier operator.

(4) Air carrier preparation of request

for security program amendment—1

hour for each part 108 air carrier

operator.

(5) Recordkeeping by the air carrier of

each X-ray survey conducted for use by

FAA officials upon request—.5 hours for

each part 108 air carrier operator.

(6) Recordkeeping by the air carriers

showing self-evaluation of security

functions performed at each air carrier

station and training to all personnel

performing security functions—.5 hours

for each part 108 air carrier operator.

(7) Reporting of acts or suspected acts

of aircraft piracy to the FAA. This report

is not normally in written form and it

determined to be a request for

assistance—.2 hours for each part 108

air carrier operator.

(8) Air carrier acknowledgment of

receipt of Security Directives—1.1 hours

for each part 108 air carrier operator.

It is estimated that this proposal will

affect 266 part 108 aircraft operators

annually.

Organizations and individuals

desiring to submit comments on the

information collection requirements

should direct them to the Office of

Information and Regulatory Affairs,

OMB, Room 1235, New Executive Office

Building, Washington, DC 20503;

Attention: Desk Officer for Federal

Aviation Administration. 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. A copy of the comments

also should be submitted to the FAA

Rules Docket.

OMB is required to make a decision

concerning the collection of information

contained in this NPRM between 30 and

60 days after publication in the Federal

Register. Therefore, a comment to OMB

is best assured of having its full effect

if OMB receives it within 30 days of

publication. This does not affect the

deadline for the public to comment to

the NPRM.

Regulatory Evaluation Summary

Proposed changes to Federal

regulations must undergo several

economic analyses. First, Executive

Order 12866 directs that each Federal

agency shall 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 requires agencies to analyze the

economic effect of regulatory changes

on small entities. Third, the Office of

Management and Budget directs

agencies to assess the effect of

regulatory changes on international

trade. In conducting these analyses, the

FAA has determined that this Notice of

Proposed Rulemaking (NPRM) would

generate benefits that justify its costs

and is ‘‘not a significant regulatory

action’’ as defined in the Executive

Order. The FAA estimates that the

NPRM would not have a significant

economic impact on a substantial

number of small entities. No part of the

proposed rule is expected to constitute

a barrier to international trade. In

addition, this proposed rule does not

contain any Federal intergovernmental

or private sector mandates. Therefore,

the requirements of Title II of the

Unfunded Mandates Reform Act of 1995

do not apply. These analyses, available

in the docket, are summarized below.

Costs

The total cost of compliance of the

proposed rule over the next 10 years is

estimated to be $42.8 million (1994

dollars). On a discounted basis (7

percent rate of interest), the proposed

rule would impose a cost of $31.3

million. Of the 26 sections amended by

the proposed rule, only five sections

would result in cost impacts. The other

21 sections would not impose costs

because they contain minor definitional,

clarification, and procedural changes.

They also would codify existing

practices as contained in the air carrier

standard security program (ACSSP).

Those sections that would potentially

impose costs are discussed below.

Section 108.101 Adoption and

Implementation

Depending on aircraft seating

configuration, current regulations

specify the requirements of a security

program (full, modified, or none) that is

required. The proposed changes to this

section would increase the number of

aircraft operators that must adopt and

maintain security programs. It would

also require any private charter

operation deplaning or enplaning

through a sterile area to adopt and

implement a full security program.

Specifically, section 108.101 would

require that these aircraft operators

adopt and implement security programs:

(1) Scheduled U.S. passenger and public

charter operations using an aircraft

having passenger seating configuration

of greater than 60 seats; (2) Scheduled

U.S. passenger and public charter

operations using an aircraft having a

passenger seating configuration of less

than 61 seats when passengers are

enplaned or deplaned into a sterile area;

and (3) A scheduled U.S. passenger,

public charter, or private charter

operation with an aircraft having a

passenger seating configuration of less

than 61 seats engaged in operations to,

from, or outside the U.S. Section

108.101 would require these aircraft

operators to adopt and implement

modified security programs.

Because these carriers are not

currently required to maintain a security

program, the incremental cost of this

section would be the cost to adopt and

maintain a security program. In

addition, any operators seeking

certification in these size categories in

the future would bear the same

incremental cost. Of the estimated 2,970

U.S. certificated air carriers,

approximately 51 would be affected by

the proposed rule change. Since the

major and national air carriers and the

large regional carriers already

implement security programs, the major

impact of this section would be on the

small operators.

As the result of this proposal, an

estimated 51 existing operators would

incur a potential cost of compliance of

$145,503 (or $105,428, discounted) over

the next 10 years. This cost estimate of

$145,503 was derived by multiplying

the one-time application cost of $273

and the recurring staff cost of $258

times the number of potentially

impacted operators of 51 over the 10-

year period. Similarly, new applicants

would also be impacted. This evaluation

assumes that three to four new

applicants would file for certification in

this carrier group annually. This action

would result in an estimated potential
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41745

cost of compliance of $18,585 (or

$13,116, discounter) over the next 10

years. This cost estimate of $18,585 was

derived by multiplying the one-time

application cost of $273 and the

recurring staff cost of $258 times the

number of potentially impacted new

applicant operators of 35 (or 3 to 4

annually) over the 10-year period. Thus,

the total potential cost of compliance for

this section is $164,088 (or $118,545,

discounted).

The cost estimate $164,000 does not

take into account the cost of training

associated with adopting and

implementing a security program. This

is because there is uncertainty about the

number and magnitude of the impacted

operators. Based primarily on the

informed judgement of FAA technical

personnel, there would be little or no

training cost associated with

implementing and adopting the security

program for most of the impacted

operators. For most of these small

operators, only one person (who

performs a multitude of functions)

would develop and implement the

security program. For this person, little

or no training would be required.

However, in those instances in which

other persons have to become familiar

with the security program, there would

additional costs for training. It is not

known as to how many of these other

persons would have to be trained and

the amount of training needed. As the

result of this uncertainty, the FAA

solicits comments from the aviation

community as the full impact of the

proposal on impacted part 108

operators.

Section 108.277 Training and

Knowledge of Persons With SecurityRelated Duties

The regulation governing security

training currently is directed toward

flight crewmembers and Security

Coordinators. The FAA requires

extensive training for personnel who

conduct screening, supervisors, and

other persons performing extraordinary

security procedures in air carriers to

train any person performing security

functions in accordance with their

approved security programs. Security

training would be conducted by an

instructor trained and approved by the

Administrator. The potential

incremental cost for this proposed

section is estimated to be $13.3 million,

or $10.1 million (discounted), over the

next 10 years. This estimate of $13.3

million was derived in four steps. First,

the FAA Training cost estimate of

$570,620 was derived by multiplying

the FAA’s Instructor Salary Cost per

training session ($1,030) times the

number of training sessions (554) over

the next 10 years. Second, the Initial Air

Carrier Training cost estimate of $4.7

million was derived by adding the cost

of training employees ($4.3 million) to

the cost for an instructor ($422,000) over

the 10-year period. Third, the cost

estimate of $8 million for annual air

carrier training requirements was

derived by combining the employee

training cost estimate ($7.3 million)

with that for an instructor ($700,000)

over the 10-year period. And, last, all

three of these cost components were

summed.

While this section of the evaluation

has attempted to account for the

potential cost that bomb threats would

have on passengers, it does not address

the potential impact on air carrier

operators. This omission is due to the

fact that the FAA has no data from

which to reasonably estimate what the

potential cost impact would be in the

event of bomb threats. Because of this

omission, there is uncertainty as to the

impact, in the form of delays, bomb

threats would have on aircraft operators

and other entities. As the result of

uncertainty associated with the

potential cost of delays caused by bomb

threats, the FAA solicits comments from

the aviation community. Commenters

are asked to focus on the potential cost

of delays this proposed section would

impose on aircraft operators and other

entities (including passengers). The

FAA requests that comments be as

detailed as possible and cite or include

supporting documentation.

Section 108.303 Bomb or Air Piracy

Threats

Air carrier operators follow a set of

standard procedures, mandated by the

FAA, in the event that an operation is

threatened by an act of terrorism (bomb

threat, hijacking, etc.). Currently, this

does not always require that the aircraft

be cleared. The FAA proposes to amend

these procedures to require that an

operator deplane all passengers on

board a threatened aircraft so that the

appropriate security personnel may

conduct a security inspection.

Section 108.305 Security Directives

and Information Circulars

This revision proposes that all air

carrier operators develop and

implement standardized procedures to

deal with security directives and

information circulars issued by FAA.

The FAA proposes that operators

respond immediately to a directive by

acknowledging its receipt by phone and,

within 72 hours (unless otherwise

specified), to provide a written

summary of procedures implemented to

the FAA. The potential incremental cost

of this proposed rule change is

estimated to be $665,300 (or $467,300,

discounted). This estimate of $665,300

to Notify the Principal Security

Inspector (PSI), including

acknowledgment and forwarding of

results, was derived by combining the

cost estimates for Staff to Process

Directives ($388,000) with that for

phone calls and faxes ($277,000).

Section 108.307 Security Contingency

Plan

This section would require air carrier

operators to adopt contingency plans

developed by the FAA to test them

periodically in coordination with the

respective airport operator testing of

contingency plans. Thus, based on the

informed opinion of FAA security

personnel, twelve hours would be

required for each test of the contingency

plan each year; the proposed revisions

to this section would impose an

incremental cost of $26.3 million to

operators over 10 years (or $19.0

million, discounted). This estimate of

$26.3 million to ensure conformity with

airport plans was derived by employing

two steps. The first step estimated the

one-time cost for ensuring conformity

by conducting air carrier initial review

of contingency plans. In the first year

(1996) only, cost estimation for this step

represents multiplying the number of

impacted air carriers (185) times the

number of airports involved (25) times

the number of hours of work required to

review plan (16) times the hourly salary

of air carrier security personnel

($32.25). For example, this computation

would result in an estimated one-time

compliance cost of $2,386,500

(185×25×16×$32.25), over the 10-year

period, for the initial review of

contingency plans. And, the second step

of ensuring conformity consists of

testing the contingency plan. Over the

next 10 years, cost estimation for this

step represents multiplying the number

of impacted air carries (1,850=185×10)

times the number of airports involved

(25) times the number of hours of work

required to test plan (16) times the

hourly salary of air carrier security

personnel ($32.25). For example, this

computation would result in an

estimated one-time compliance cost of

$23,865,000 (1,850×25×16×$32.25), over

the 10-year period, for testing of

contingency plans. Thus, the total

compliance cost for this section was

derived by summing the two cost

components

($26,251,500=$2,386,500+$23,885,000).
41746 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

Benefits

The proposed rules to amend parts

107 and 108 are intended to enhance

aviation safety for U.S. airports and air

carriers in ways that are not currently

addressed. The potential benefits of the

proposed rules would be a

strengthening of both airport and air

carrier security by adding to their

effectiveness. Security for U.S. airlines

is achieved through an intricate set of

interdependent requirements.

It would be difficult to separate out

any one change or set of changes in the

proposed rules to amend part 107 or

part 108 and identify to what extent that

change or set of changes, alone, would

prevent a criminal or terrorist act in the

future. Certainly, it would be difficult to

show, for example, that air carrier

contingency plans (proposed § 108.307)

or training procedures (proposed

§ 108.227) would be solely responsible

for preventing a future criminal or

terrorist incident. Nevertheless, these

changes in both proposed rules are an

integral part of the total program needed

by the airport operator and the FAA to

thwart such incidents.

I would also be extremely difficult to

determine to what extent an averted

terrorist incident could be credited to

either airport operator security or to air

carrier security. Accordingly, the

benefits from the proposed rules for

parts 107 (airport operators) and 108 (air

carriers) have been combined in this

benefit-cost analysis. These benefits are

comprised of the criminal and terrorist

incidents that these rules are intended

to prevent; hence, these benefits will be

contrasted against the costs of the

proposed changes to parts 107 and 108.

Since 1987, the FAA has initiated

rulemaking and promulgated five

security-related amendments that have

amended both parts 107 and 108. These

amendments added to the effectiveness

of both parts in that they were designed

to address certain aspects of the total

security system to help prevent further

criminal and terrorist activities. In 1996,

both Congress and the White House

Commission on Aviation Safety and

Security (Gore Commission)

recommended further specific actions to

increase aviation security. President

Clinton, in July 1996, declared that the

threat of both foreign and domestic

terrorism to aviation is a national threat.

Benefits of Preventing Criminal and

Terrorist Incidents

The requirements in parts 107 and

108 allow the FAA to combat criminal

and terrorist incidents with a variety of

actions. The primary incidents that

recent rulemakings have addressed

include bombings, hijackings, and

sabotage. In order to increase the

accuracy of the analysis, these criminal

and terrorist incidents have been

divided into classes.

Bombing incidents involving

explosive have been grouped into two

main categories:

• Class I Explosion incidents include

tragedies, such as the explosion of Pan

Am Flight 103, that involve the loss of

an entire aircraft and incur a large

number of fatalities; and

• Class II Explosion incidents include

terrorist attempts that were partially

averted (explosions that only partially

damaged an aircraft) or that occurred

outside the aircraft (usually in the

airport itself), and that included some

injuries and/or fatalities. An example of

such an incident is TWA Flight 840,

which resulted in 4 fatalities and

injuries.

These two types of incidents differ

significantly both in terms of costs and

in terms of their predictability.

Depending on the exact circumstances,

the costs for a Class II Explosion can

vary widely. The costs of a single Class

I Explosion incident substantially

exceed those of a Class II Explosion

incident.

Six explosions have taken place on

U.S. air carriers between 1979 and 1988;

five of these were Class II Explosion

incidents, while one (in 1988) was a

Class I Explosion incident.

Most hijackings do not involve any

deaths or injuries, the cost is calculated

based on operating costs (crew salaries,

fuel, and maintenance), passenger time

loss, and the loss of future revenues.

However, a few hijackings over the last

15 years have involved fatalities or

injuries. One incident resulted in a large

number of fatalities and injuries.

Hijacking incidents have been divided

into three main categories:

• Class I Hijacking incidents are

typified by the September 5, 1986

hijacking of a Pan Am flight in Karachi,

Pakistan that caused a large number of

fatalities and injuries (this flight had 22

fatalities and 125 injuries);

• Class II Hijacking incidents include

hijackings that are based on other

casualty-related incidents when one or

a few death(s) or injury(ies) occur. An

example of an incident in this category

would be the 1985 hijacking of a TWA

flight en route from Athens to Rome that

was hijacked to Lebanon.

• Class III Hijacking incidents involve

the forcible diversion of an airplane

with no loss of life or injuries. The

majority of hijackings fall into this

category; hijackings typical of this

category include many in which the

hijacker’s destination was Havana,

Cuba.

Sabotage, in this evaluation, refers

strictly to an incident like the PSA 1771

incident. Sabotage incidents have been

subdivided into two categories:

• Class I Sabotage incidents involve a

major loss of life, typified by the PSA

1771 incident; and

• Class II Sabotage incidents include

a few injuries, such as the incident at

National Airport in 1990 where a former

employee of Ogden Allied Services

gained access to the AOA.

In order to estimate the magnitude of

potential safety benefits that would be

generated by the proposed rule, this

evaluation employed two steps. First,

the historical record was examined

related to the number of criminal and

terrorist incidents from 1985 to 1994.

Those incidents were examined and

summed for each of the seven categories

shown in Table 1 (Column A). Second,

each of those seven categories of

incidents were assigned monetary

values (as shown in Table 1, Column B).

And last, the number of incidents in

each of the seven categories were

multiplied times their respective

monetary values and summed. This last

computation resulted in estimated

potential benefits of $1.871 billion (or

$1.334 billion, discounted) over the next

10 years in 1994 dollars. In this

computation, the present value of each

category of incident was calculated

using the current discount rate of 7

percent. In order to provide the public

and government officials with a

benchmark comparison of the expected

safety benefits of rulemaking actions

over an extended period of time with

estimated costs in dollars, the FAA

currently uses a value of $2.7 million

and $518,000 to statistically represent a

human fatality and a major injury

avoided, respectively.

Table 1 shows the benefits of

preventing potential Class I Explosion

incidents, Class I through III Hijacking

incidents, and Class I and Class II

Sabotage incidents. The number of

projected incidents are the same as the

number of historical or past incidents.
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41747

TABLE 1.—MONETARY VALUE OF INCIDENTS BY TYPE AND CATEGORY

[1994 Dollars]

Type of incidents by category

(Column A)

number of

past projected incidents

(Column B) monetary value

(undiscounted)

per incident

(Column C) monetary value (discounted) per incident

Class I Explosions ................................................................................................................ 1 1,416,572,478 $994,941,230

Class II Explosions ............................................................................................................... 2 7,731,000 5,429,931

Class I Hijackings ................................................................................................................. 1 124,784,223 87,643,214

Class II Hijackings ................................................................................................................ 1 3,467,403 2,435,357

Class III Hijackings ............................................................................................................... 18 249,403 175,168

Class I Sabotage .................................................................................................................. 1 304,915,169 234,083,083

Class II Sabotage ................................................................................................................. 1 1,035,000 727,642

Summing the product of the projected

incidents by their undiscounted and

discounted values yield total benefits of

$1.871 billion and $1.334 billion,

respectively.

Changing Dynamics of Aviation Security

Activity

In this evaluation, the potential safety

benefits were estimated based on the

historical record of 25 criminal and

terrorist incidents from 1985 to 1994.

Members of foreign terrorist groups

and representatives from state sponsors

of terrorism are present in the United

States. There is evidence that a few

foreign terrorist groups have wellestablished capability and

infrastructures to support terrorism. In

addition, the presence of international

extremists in the Untied States is

growing, and the potential threat from

them is increasing. The activities of

some of 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. Some of

these extremists operate in small groups

and act without guidance or support

from state sponsors. This makes it

difficult to identify them or to anticipate

and counter their activities.

Investigation into the February 1993

attack on the World Trade Center (WTC)

uncovered a foreign terrorist threat in

the U.S. more serious than previously

known. The WTC investigation and the

discovery in 1995 of Ramzi Yousef’s

plot to bomb U.S. air carriers operating

in Asia have shown that: (1) Foreign

terrorists conducting future attacks in

the U.S. may choose civil aviation as a

target despite the many more easily

accessible targets that are equally

symbolic of America, (2) foreign

terrorists have demonstrated their

ability to operate in the U.S., and (3)

foreign terrorists are capable of building

and artfully concealing improvised

explosive devices that pose a serious

challenge to aviation security. Civil

aviation’s prominence as a perspective

target is clearly illustrated by the

circumstances of the Asian conspiracy:

The terrorists persisted in planning to

attack aviation even when there were

other targets identifiable with the U.S.

in the area and even when they knew

security measures protecting aviation

were at a high level.

In addition, the bombing of a federal

office building in Oklahoma City shows

the potential for terrorism from

domestic groups. Civil aviation’s

prominence would also be evident to

domestic groups. so the threat to civil

aviation needs to be prevented and/or

countered from both domestic and

foreign sources and potential domestic

sources.

The agency recognizes that potential

benefits could change as the result of

the changing dynamics of aviation

security. While the benefits estimate

contained in this analysis is valid based

on those incidents cited in the historical

record, this baseline could change upon

the future assessment of an increased

credible security threat(s). Accordingly,

the pool of potential safety benefits

could increase and be applied to any

future rulemaking actions related to

such threats.

Recent Security-Related Rules—

Updated Methodology

Each of the other five security rule

that the FAA has promulgated since

1987 has been updated from its

respective base year dollars to 1994

using the implicit price deflator for

Gross Domestic Product. The present

value of the costs was recalculated using

the current discount rate of 7 percent.

The FAA has developed new data that

improved components of past analyses.

Table 2 below summarizes the total

updated costs, which total $727.1

million ($497.8 million, discounted).

TABLE 2.—SUMMARY OF THE COSTS OF SECURITY-RELATED RULEMAKING ACTIONS

[1994 Dollars]

Rulemaking action (year) Costs

(undiscounted)

Costs

(discounted)

Access to Secured Areas on Airports (1988) .............................................................................................. $667,577,115 $452,643,386

Security Directives (1989) ............................................................................................................................ 56,050 39,367

Explosives Detection Systems (1989)1 ........................................................................................................ N/A N/A

X–Ray Systems (1990)2 .............................................................................................................................. 741,342 741,342

Employment Standards (1990) .................................................................................................................... 58,679,348 44,339,289

Total Cost: Existing Rules .................................................................................................................... 727,053,855 497,763,384

1See Appendix C to full regulatory evaluation.

2For this rulemaking action, discounted and undiscounted costs are the same. While this procedure is unusual, it is appropriate for the rule.

This assessment is based on the fact that the cost of compliance impact on U.S. airport operators represents the ‘‘opportunity cost of capital.’’ In

order to comply with this rule, impacted airport operators were expected to purchase X–Ray systems from one to four years sooner than they

otherwise would have.
41748 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

Comparison of Costs and Benefits

The benefits sections of this analysis

describes how the FAA calculated a

single point value of benefits upon the

prevention of the assumed mean

number of each of seven categories of

criminal or terrorist incidents during the

next 10 years. As discussed, above, the

undiscounted benefits of avoiding this

particular combination of incidents is

$1.871 billion (or $1.334 billion,

discounted). A simple comparison of

this single value benefit estimate to the

combined estimated costs of the

proposed amendments to parts 107 and

108 ($217.0 million or $174.0 million

discounted) suggests that expected

benefits exceed estimated costs.

The FAA performed a computer

analysis calculating the probability and

associated benefits of each possible

combination of occurrences. The results

of that analysis indicates that the

probability exceeds 95% that obtaining

combinations of occurrences where the

benefits of avoiding any of these

combinations of occurrence will exceed

the estimated costs of these proposed

rules. When the estimated cost of these

two proposed rules ($217 million,

undiscounted) are added to the cost of

the five security rules ($727 million,

undiscounted) already issues, the

combined cost is $944 million

($727+$217), undiscounted. The

probability of obtaining a combination

of occurrence yielding benefits equal to

or greater than $944 million is over

68%. The FAA, therefore, has

determined that the benefits of these

two proposed rules exceed their costs,

even when the costs of these two rules

are added to the cost of the previously

issued rules.

Initial Regulatory Flexibility

Determination

The Regulatory Flexibility Act of 1980

(RFA) was enacted by Congress to

ensure that small entities are not

unnecessarily burdened by government

regulations. the RFA requires agencies

to review rules that may have a

‘‘significant economic impact on a

substantial number of small entities.’’

In accordance with FAA Order

2100.14A (Regulatory Flexibility and

Guidance, dated July 15, 1983), The

FAA’s criterion for a ‘‘substantial

number’’ is a number that is not less

than 11 and that is more than one third

of the small entities subject to the rule.

For this evaluation, small entities refer

to U.S. operators of aircraft for hire with

nine or fewer aircraft owned, but not

necessarily operated. These small

entities include: (1) Schedules aircraft

operators whose entire fleet has a

seating capacity of over 60, (2) Other

scheduled aircraft operators whose

entire fleet has a seating capacity of less

than 60 (e.g., commuter operators and

small majors/nationals types), and (3)

Unscheduled aircraft operators.

Unscheduled operators include air taxi

and large charter types.

The criterion for ‘‘significant

economic impact’’ is defined as the

FAA’s assigned annualized net

compliance cost threshold to that entity.

When the cost of compliance for a small

entity, as imposed by a proposed rule,

is equal to or exceeds this annualized

threshold level, it is considered to be

significant. The annualized threshold

amount for scheduled aircraft operators

is $121,300. For other scheduled aircraft

operators, this amounts to $67,800. For

unscheduled aircraft operators, this

amounts to $4,800. These cost estimates

have been converted from 1983 to 1994

dollars.

The proposed rule would potentially

impact small U.S. air carriers engaged in

charter services and selected helicopter

operators. These aircraft operators are

engaged in services under parts 121 and

135. An examination of small entities

under each of these parts, by size of

aircraft, will be discussed by each

proposed section as follows. (The nonannual costs of the proposed rule have

been annualized by multiplying them by

a capital recovery factor of .14238 (10

years, 7 percent).)

Section 108.101 Security Program:

Adoption and Implementation

The proposed change to § 108.101

would only affect an estimated 51

operators. This estimate of 51 includes:

15 non-scheduled domestic service

operators with greater than 60 seats, 11

scheduled international service

operators with fewer than 31 seats, and

25 non-scheduled international service

operators (including air taxi operations).

This proposed section would impose an

annualized cost of compliance of $285

for each of the 51 aircraft operators.

Section 108.277 Training and

Knowledge of Persons With SecurityRelated Duties

The proposed change to § 108.227

would affect an estimated 2,930 aircraft

operators. This estimate of 2,930

includes: 74 scheduled operators with

between 31 and 60 seats, 131 scheduled

operators with less than 31 seats, 15

non-scheduled operators with greater

than 60 seats, and 2,710 non-scheduled

operators with 60 or less seats. This

proposed section would impose an

annualized cost of compliance of $470

for each of the 2,930 aircraft operators.

Section 108.303 Bomb or Piracy

Threats

The proposed change to § 108.303

would affect all 2,970 U.S. aircraft

operators. This proposed section would

impose in annualized cost of

compliance of $8 for each of the 2.970

aircraft operators.

Section 108.305 Information Circulars

The proposed change to § 108.305

would affect an estimated 185 U.S.

aircraft operators. This proposed section

would impose an annualized cost of

compliance of $360 for each of the 185

operators that would be affected by this

section.

Section 108.307 Contingency Plans

The proposed change to § 108.307

would affect an estimated 185 U.S.

aircraft operators. This would impose an

annualized cost of compliance of

$14,600 for each of the 185 operators

that would be affected by this section.

The sum of the annualized costs of

each section is approximately $16,000

(rounded). Of the total annualized cost

of $16,000, an estimated $760 (proposed

sections 108.101, 108.227, and 108.303)

would potentially impact scheduled and

unscheduled aircraft operators. Since

unscheduled aircraft operators are

potentially impacted, this assessment

will include the lowest annualized

threshold level of $4,800 (from a worst

cast standpoint). This cost estimate of

$810 is less than the annualized

threshold amount of $4,800. The

remaining annualized cost of $15,240

would only potentially impact

scheduled aircraft operators. This

estimate of $15,240 is less than the

annualized threshold estimates for

scheduled and other scheduled

operators ($121,300 and $67,800

respectively). Thus, the proposed rule

would not impose a significant

economic impact on a substantial

number of small entities (scheduled or

unscheduled). For this reason, a

regulatory flexibility analysis is not

required.

International Trade Impact Assessment

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.

The proposed rule would have no

impact on the competitive posture of

either U.S. carriers doing business in

foreign countries or foreign carriers

doing business in the United States.

This assessment is based on several

factors. First, it would not have an
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41749

impact on most existing part 121

scheduled operators, since they are

already in compliance. However, it

would impact non-scheduled aircraft

operators with more than 60 passenger

seats (primarily, large charter types),

non-scheduled aircraft operators with

less than 60 seats (primarily, small air

taxi types), some scheduled aircraft

operators with more than 60 seats, and

all scheduled aircraft operators with less

than 31 passenger seats (commuter

types). U.S. non-scheduled aircraft

operators (regardless of the number of

seats) generally do not compete with

foreign non-scheduled aircraft

operators. This assessment is also true

for U.S. schedule aircraft operators with

less than 31 seats. When engaged in

foreign travel, these operators usually

fly from the U.S. to a foreign destination

and return. These operators do not have

aircraft based in foreign countries for

flights to the U.S. and other foreign

countries. Thus, neither domestic nor

foreign air carriers would be affected

disproportionately by these proposed

requirements. These proposed

requirements, therefore, will not cause a

competitive disadvantage for U.S. air

carriers operating overseas or for foreign

carriers operating in the United States.

Unfunded Mandates

Title II of the Unfunded Mandates

Reform Act of 1995 (the Act), enacted as

Pub. L. 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

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 one 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 or rules.

This proposed rule does not contain

any Federal intergovernmental or

private sector mandate. Therefore, the

requirements of Title II of the Unfunded

Mandates Reform Act of 1995 do not

apply.

Federalism Implications

The regulations proposed herein

would not have substantial direct effects

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,

in accordance with Executive Order

12612, it is determined that this

proposal would not have sufficient

federalism implications to warrant the

preparation of a Federalism statement.

Conclusion

For the reasons discussed in the

preamble, and based on the findings in

the Regulatory Flexibility Determination

and the International Trade Impact

Analysis, the FAA has determined that

this proposed regulation is significant

under Executive Order 12866. In

addition, the FAA certifies that this

proposal, if adopted, will not have a

significant economic impact, positive or

negative, on a substantial number of

small entities under the criteria of the

Regulatory Flexibility Act. This

proposal is considered significant under

DOT Regulatory Policies and Procedures

(44 FR 11034, February 26, 1979).

List of Subjects in 14 CFR Part 108

Air carriers, Aircraft, Airmen,

Airports, Arms and munitions,

Explosives, Law enforcement officers,

Reporting and record keeping

requirements, Security measures, Xrays.

The Proposed Amendment

In consideration of the foregoing, the

FAA proposes to revise 14 CFR part 108

to read as follows:

PART 108—AIRCRAFT OPERATOR

SECURITY

Subpart A—General

Sec.

108.1 Applicability.

108.3 Definitions.

108.5 Inspection Authority.

108.7 Falsification.

108.9 Security responsibilities of persons.

Subpart B—Security Program

108.101 Adoption and implementation.

108.103 Form, content, and availability.

108.105 Approval and amendments.

Subpart C—Operations

108.201 Screening of persons and property,

and acceptance of cargo.

108.203 Use of metal detection devices.

108.205 Use of X-Ray systems.

108.207 Use of Explosives detection

systems.

108.209 Employment standards for

screening personnel.

108.211 Law enforcement personnel.

108.213 Carriage of weapons.

108.215 Carriage of passengers under the

control of armed law enforcement

escorts.

108.217 Transportation of Federal Air

Marshals.

108.219 Security of aircraft and facilities.

108.221 Employment history, verification,

and criminal history records checks.

108.223 Personnel identification system.

108.225 Security Coordinators and

crewmembers, training.

108.227 Training and knowledge of persons

with security-related duties.

Subpart D—Threat and Threat Response

108.301 Security Coordinators.

108.303 Bomb or air piracy threats.

108.305 Security Directives and

Information Circulars.

108.307 Contingency plan.

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

§ 108.1 Applicability.

(a) This part prescribes aviation

security rules governing:

(1) The operations of holders of FAA

air carrier operating certificates or

holders of operating certificates for

scheduled passenger operations, public

charter passenger operations, private

charter passenger operations, and other

air carriers voluntarily adopting an

aviation security program.

(2) Each person aboard an aircraft

operated by an air carrier described in

paragraph (a)(1) of this section.

(3) Each person at an airport at which

the operations described in paragraph

(a)(1) of this section are conducted.

(4) In accordance with part 191 of this

chapter, each air carrier that receives a

Security Directive or Information

Circular and each person who receives

information from a Security Directive or

Information Circular issued by the

Assistant Administrator for Civil

Aviation Security.

(b) Except as provided in § 108.105 of

this part, the authority of the

Administrator under this part is also

exercised by the Assistant

Administrator for Civil Aviation

Security and the Deputy Assistant

Administrator for Civil Aviation

Security, and any individual formally

designated to act in their capacity. The
41750 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

authority of the Assistant Administrator,

including matters under § 108.105 of

this part, may be further delegated.

§ 108.3 Definitions.

Terms defined in part 107 of this

chapter apply to this part. For purposes

of this part, part 107 of this chapter, and

security programs under these parts, the

following definitions also apply:

Accepted security program means a

security program accepted by the

Administrator for use by a foreign air

carrier in accordance with § 129.25 of

this chapter.

Approved security program means a

security program approved by the

Administrator for use by scheduled

passenger operations, public charter

passenger operations, private charter

passenger operations, or all-cargo carrier

operations, in accordance with

§ 108.105 of this part.

Assistant Administrator means the

FAA Assistant Administrator for Civil

Aviation Security as described in 49

U.S.C. 44932.

Passenger seating configuration

means the total number of seats for

which the aircraft is type certificated

that can be made available for passenger

use aboard a flight and includes that set

in certain aircraft which may be used by

a representative of the Administrator to

conduct flight checks but is available for

revenue purposes on other occasions.

Principal Security Inspector means

the civil aviation security special agent

assigned by the Administrator to be the

FAA’s primary point of contact with the

air carrier for all matters relating to

aircraft operator security.

Private chapter means any air carrier

flight—

(1) For which the charterer engages

the total passenger capacity of the

aircraft for the carriage of passengers; for

which passengers are invited by the

charterer, the cost of the flight is borne

entirely by the charterer and not directly

or indirectly by any individual

passenger; and that is not advertised to

the public, in any way, to solicit

passengers.

(2) Flights for which the total

passenger capacity of the aircraft is used

for the purpose of civilian or military air

transportation conducted under contract

with the Government of the U.S. or the

Government of a foreign country also

considered ‘‘private charters.’’

Private charter means any charter

which is not a private charter.

Scheduled passenger operation means

a public air transportation service (a

flight) from identified air terminals at a

set time which is held out to the public

and announced by timetable or schedule

published in a newspaper, magazine, or

other advertising medium.

Sterile area means a portion of an

airport defined in the airport security

program to which access is controlled

by either the inspection of persons and

property in accordance with an

approved or accepted security program

required under §§ 108.105 of this part or

§ 129.25 of this chapter, or an access

control system meeting the

requirements of § 107.205 of this

chapter.

§ 108.5 Inspection authority.

(a) Each air carrier shall allow the

Administrator, including FAA Special

Agents, at any time or place, to make

any inspections or tests to determine

compliance of the airport operator, air

carrier, foreign air carrier, and other

airport tenants with—

(1) The air carrier security program;

(2) This part;

(3) 49 CFR part 175, which relates to

the carriage of hazardous materials by

aircraft; and

(4) 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 and its air carrier security

program.

(c) On request of any FAA Special

Agent, and presentation of valid FAAissued credentials, each air carrier shall

issue to that agent access and

identification media to provide the

special agent with unescorted access to,

and movement within, exclusive areas.

§ 108.7 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, access medium,

or identification medium, 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, access

medium, or identification medium

issued under this part.

§ 108.9 Security responsibilities of

persons.

(a) No person may:

(1) Tamper or interfere with,

compromise, modify, attempt to

circumvent, or cause a person to tamper

or interfere with, compromise, modify,

or circumvent any security system,

method, or procedure implemented

under this part.

(2) Enter, or be present within, a

critical security area or restricted

operations area without complying with

the systems, methods, or procedures

being applied to control access to, or

presence in, such areas.

(3) Use, allow to be used, or cause to

be used any airport-approved access

medium or identification medium that

authorizes the access or presence of

persons and vehicles in critical security

areas or restricted operations areas in

any other manner than that for which it

was issued by the appropriate authority

under this part, part 107, or part 129 of

this chapter.

(b) Except as provided in 49 U.S.C.

Subtitle VII, and paragraphs (c) and (d)

of this section, no individual may have

any deadly or dangerous weapon,

explosive, incendiary, or other

destructive substance on or about the

individual’s person or accessible

property when entering, or within, a

critical security area or restricted

operations area of an airport governed

by part 107 of this chapter, or a sterile

area governed under § 108.201 of this

part.

(c) The provisions of this section with

regard to paragraphs (a) and (b) of this

section do not apply to persons

authorized by the Federal government,

airport operator, air carrier, or foreign

air carrier to conduct inspections for

compliance with this part, parts 107 and

129 of this chapter, and 49 U.S.C.

Subtitle VII, while they are conducting

an inspection.

(d) The provisions of this section with

respect to firearms and weapons do no

apply to the following:

(1) Law enforcement personnel

required under this part or part 107 of

this chapter to carry a firearm or other

weapon while in the performance of

their duties at the airport.

(2) Persons authorized to carry a

firearm under § 108.213, § 108.215,or

§ 129.27 of this chapter.

(3) Persons authorized to carry a

firearm in a sterile area, critical security

area, restricted operations area under

this part, an approved airport security

program, an approved air carrier

security program, or a security program

used in accordance with § 129.25 of this

chapter.

(4) Properly declared firearms in

checked baggage for transport under

§ 108.213 of this part.

(5) Transportation of hazardous

materials under 49 CFR part 175.

(6) Federal Air Marshals while on

mission status.

(7) Air carrier aircraft not subject to

part 108 and part 129 of this chapter

carrying firearms in accordance with

state or local law.
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41751

Subpart B—Security Program

§ 108.101 Adoption and implementation.

(a) Each air carrier shall adopt and

carry out a security program that meets

the requirements of § 108.103 for any of

the following operations:

(1) A scheduled passenger or public

charter passenger operation with an

aircraft having a passenger seating

configuration of more than 60 seats.

(2) A scheduled passenger or public

charter operation using an aircraft

having a passenger seating configuration

of less than 61 seats when passengers

are enplaned from or deplaned into a

sterile area.

(3) A private charter operation when

passengers are enplaned from or

deplaned into a sterile area.

(4) An air carrier operation, other than

that described in paragraphs (a) (1), (2),

and (3) of this section, further identified

below except that those parts of the

program effecting compliance with the

requirements listed in § 108.103(b) (1),

(2), (3), (4), (6), and (8) of this part need

only be implemented when the

Administrator notifies the air carrier in

writing that a security threat exists

concerning that operation:

(i) A private charter operation with an

aircraft having a passenger-seating

configuration of more than 30 seats.

(ii) A scheduled passenger or public

charter operation with an aircraft having

a passenger-seating configuration

between 31 and 60 seats inclusive.

(iii) A scheduled passenger, public

charter, or private charter operation

with an aircraft having a passengerseating configuration of less than 61

seats engaged in operations to, from, or

outside the U.S.

(b) Each air carrier that has obtained

FAA approval of a security program for

operations not listed in paragraph (a) of

this section shall carry out the

provisions of that program.

§ 108.103 Form, content, and availability.

(a) The security program required

under § 108.101 shall:

(1) Provide for the safety of persons

and property traveling on flights

provided by the air carrier against acts

of criminal violence and air piracy, and

the introduction of explosives,

incendiaries, deadly or dangerous

weapons, or other destructive

substances aboard an aircraft.

(2) Provide that, upon receipt of an

approved security program or security

program amendment from the FAA, the

air carrier shall acknowledge receipt of

the approved security program to the

Principal Security Inspector, in writing

and signed by the air carrier or any

person delegated authority in this

matter within 72 hours.

(3) Include the items listed in

paragraph (6) of this section, as required

by § 108.101.

(4) Be approved by the Administrator.

(b) The security program shall

include:

(1) The procedures, and description of

the facilities and equipment used to

perform screening functions specified in

§ 108.201 of this section, and used to

perform the functions for each exclusive

area under § 107.207 of this chapter.

(2) The procedures and a description

of the equipment used to comply with

the requirements of § 108.203 of this

part regarding the use of metal detection

devices.

(3) The procedures and a description

of the equipment used to comply with

the requirements of § 108.205 of this

part regarding the use of X-ray systems.

(4) The procedures and descriptions

of the facilities and equipment used to

comply with the requirements of

§ 108.207 of this part regarding

explosives detection systems.

(5) The procedures used to comply

with the applicable requirements of

§ 108.211 of this part regarding law

enforcement personnel.

(6) The procedures and a description

of the facilities and equipment used to

perform the aircraft and facilities

control functions specified in § 108.219

of this part.

(7) The procedures used to comply

with the requirements of § 108.221 of

this part regarding employee

background investigations and

personnel identification systems.

(8) The procedures used to comply

with the applicable requirements of

§ 108.301 of this part regarding the

responsibilities of security coordinators

and the prevention and management of

hijacking and sabotage attempts.

(9) the procedures used to comply

with the requirements of § 108.303 of

this part regarding bomb and air piracy

threats.

(10) The curriculum used to

accomplish the training required under

§ 108.225 of this part.

(11) The procedures and curriculum

of the training requirements under

§ 108.227 of this part; and a security

compliance program that specifies

procedures the air carrier will

implement to ensure that persons with

authorized unescorted access to critical

security areas and restricted operations

areas comply with § 108.7 and § 108.9 of

this part, including revocation of

unescorted access authority of persons

that fail to comply with security

requirements.

(12) Designation of an Air Carrier

Security Coordinator (ACSC). The

designation shall include the name of

the ACSC and a description of the

means by which the ACSC can be

contacted on a 24-hour basis.

(13) A security contingency plan as

specified under § 108.307 of this part.

(c) Each air carrier 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, or

the pertinent portions, of its approved

security program, or appropriate

implementing instructions, at each

airport served.

(3) Make a copy of the approved

security program available for

inspection upon request of an FAA

Special Agent.

(4) Restrict the distribution,

disclosure and availability of

information contained in the 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.

(6) Implement a program to ensure

that its employees and employees of its

contractors comply with paragraphs (a)

and (b) of § 108.103. The program’s

provisions shall include penalties to be

imposed on individuals who fail to

comply with paragraphs (a) and (b) of

this section that are in accordance with

the standards contained in its approved

security program.

§ 108.105 Approval and amendments.

(a) Approval of Security Program.

Unless otherwise authorized by the

Assistant Administrator, each 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 90 days before the date of intended

passenger operations. Such request shall

be processed as follows:

(1) Within 30 days after receiving the

proposed air carrier security program,

the Assistant Administrator will either

approve the program or give the 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 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

must 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.
41752 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

(3) 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

Assistant administrator to withdraw or

amend the notice to modify, or by

affirming the notice to modify.

(b) Amendment requested by an air

carrier. An air carrier may submit a

request to the Assistant Administrator to

amend its approved or accepted security

program as follows:

(1) The application must 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. However, in

accordance with the procedures in this

paragraph, it may take longer than 45

days for a final decision by the

Administrator.

(2) Within 30 days after receiving a

proposed amendment, the Assistant

administrator, in writing, either

approves or denies the request to

amend.

(3) An amendment to an 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.

(4) Within 30 days after receiving a

denial, the air carrier may petition the

Administrator to reconsider the denial.

(5) 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 affirm the denial.

(c) Amendment by the FAA. If the

safety and the public interest require an

amendment, the Assistant

Administrator may amend an approved

or accepted security program as follows:

(1) The Assistant Administrator

notifies the air carrier, in writing, of the

proposed amendment, fixing a period of

not less than 30 days within which the

air carrier may submit written

information, views, and arguments on

the amendment.

(2) After considering all relevant

material, the Assistant Administrator

notifies the air carrier of any

amendment adopted or rescinds the

notice. If the amendment is adopted, it

becomes effective not less than 30 days

after the air carrier receives the notice

of amendment, unless the air carrier

petitions the administrator to reconsider

no later than 15 days before the effective

date of the amendment. The air carrier

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 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

Assistant Administrator to withdraw or

amend the amendment, 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, effective without stay, on

the date the airport operator 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 air carrier may file a

petition for reconsideration under

paragraph (c) of this section, however,

this does not stay the effectiveness of

the emergency amendment.

Subpart C—Operations

§ 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 to inspect each person

entering a sterile area and to inspect

each person’s accessible property.

(b) Each 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 explosive,

incendiary, deadly or dangerous

weapon, or destructive substance on or

about each person or the person’s

accessible property.

(c) Each air carrier required to

conduct screening under a security

program shall deny entry into a sterile

area and shall refuse to transport-

(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 person 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.

(d) No person shall enter a sterile area

without submitting to the screening of

his or her person and property, or

submitting to other procedures in

accordance with § 107.205(a) of this

chapter, to control access to that area in

accordance with an FAA-approved or

FAA-accepted program.

(e) Except as provided in paragraph (f)

of this section, no person shall have an

explosive, incendiary, deadly or

dangerous weapon, or destructive

substance on or about the person or the

person’s accessible property-

(1) When inspection has begun of the

individual’s person or accessible

property before entering a sterile area;

(2) When entering or in a sterile area;

or

(3) When attempting to board or

onboard an aircraft.

(f) The provisions of paragraphs (b)

and (e) of this section with respect to

firearms and weapons do not apply to

the following:

(1) Law enforcement personnel

required to carry a firearm or other

weapons while in the performance of

their duty at the airport.

(2) Persons authorized to carry a

firearm in accordance with § 108.213,

§ 108.215, § 108.217, of this part or

§ 129.27 of this chapter.

(3) Persons authorized to carry a

firearm in a sterile area under an FAAapproved or FAA-accepted security

program.

(g) Each air carrier shall staff its

security screening checkpoints with

supervisory and non-supervisory

personnel in accordance with the

standards specified in its security

program.

(h) Each air carrier required to

conduct screening under a security

program shall use the procedures

include and the facilities and equipment

described in its approved security

program to prevent the carriage of

explosives or incendiaries onboard a

passenger aircraft.

§ 108.203 Use of metal detection devices.

(a) No air carrier may use a metal

detection devise to inspect passengers,

carry-on baggage, or checked baggage
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41753

unless specifically authorized under a

security program required under this

part. No air carrier may use such device

contrary to its approved security

program.

(b) Metal detection devices shall meet

the calibration standards established by

the Administrator in the air carrier’s

approved security program.

§ 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 carry-on or checked articles

unless specifically authorized under a

security program under this part. No air

carrier many use such a system in a

manner contrary to its approved

security program. The Administrator

authorized air carriers to use X-ray

systems for inspecting carry-on or

checked articles under an approved

security program if the air carrier shows

that-

(1) The system meets the standards for

cabinet X-ray systems primarily for the

inspection of baggage issued by the

Food and Drug Administration (FDA)

and published in 21 CFR 1020.40;

(2) A program for initial and recurrent

training of operators of the system is

established, which includes training in

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

weapons and other dangerous articles;

and

(3) The system meets the imaging

requirements set forth in its approved

security program.

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

system unless, within the preceding 12

calendar months, a radiation survey is

conducted which shows that the system

meets the applicable performance

standards in 21 CFR 1020.40.

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

system after the system has been

installed at a screening point 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 air carrier shows that it can

be moved without altering it

performance.

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

system to inspect carry-on or checked

articles unless a sign is posted in a

conspicuous place at the screening

checkpoint or where checked articles

are accepted which notifies individuals

that such items are being inspected by

an X-ray and advises them to remove all

X-ray, scientific, and high-speed film

from carry-on and checked articles

before inspection. This sign shall also

advise individuals that they may request

that an inspection be made of their

photographic equipment and film

packages without exposure to an X-ray

system. If the X-ray system exposes any

carry-on or checked articles to more

than one milliroentgen during the

inspection the air carrier shall post a

sign which advises individuals to

remove film of all kinds from their

articles before inspection. If requested

by individuals, their photographic

equipment and film packages shall be

inspected without exposure to an X-ray

system.

(f) Each air carrier shall maintain at

least one copy of the results of the most

recent radiation survey conducted

under paragraphs (b) or (c) of this

section and shall make it available for

inspection upon request by the

Administrator at each of following

locations—

(1) The air carrier’s principal business

office; and

(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’’,

described in this section is incorporated

by reference herein and made a part

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

persons affected by these amendments

may obtain copies of the standard from

the American Society for Testing and

Materials, 1916 Race Street,

Philadelphia, PA 19103.

(h) Each air carrier shall comply with

the X-ray operator duty time limitations

specified in its security program.

§ 108.207 Use of explosives detection

systems.

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

security program.

§ 108.209 Employment standards for

screening personnel.

(a) No air carrier shall use any person

to perform any screening function,

unless that person has:

(1) A high school diploma, a General

Equivalency Diploma, or a combination

of education and experience which the

air carrier has determined to have

equipped the person to perform the

duties of the 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 operating X-ray

equipment must be able to distinguish

on the X-ray monitor the appropriate

imaging standard specified in the air

carrier’s security program. Wherever the

X-ray system displays colors, the

operator must be able to perceive each

color;

(ii) Screeners operating any screening

equipment must be able to distinguish

each color displayed on every type of

screening equipment and explain what

each color signifies;

(iii) Screeners must be able to hear

and respond to the spoken voice and to

audible alarms generated by screening

equipment in an active checkpoint

environment;

(iv) Screeners performing physical

searches or other related operations

must be able to efficiently and

thoroughly manipulate and handle such

baggage, containers, and other objects

subject to security processing; and

(v) Screeners who perform pat-downs

or hand-held metal detector searches of

persons must have sufficient dexterity

and capability to thoroughly conduct

those procedures over a person’s entire

body.

(3) The ability to read, speak, and

write 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, 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; 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 air carrier’s

security program.

(b) Notwithstanding the provisions of

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

carrier may use a person during the on-
41754 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

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

a sterile area or aircraft without further

inspection.

(c) No air carrier 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 air carrier’s

security program.

(d) Each air carrier shall ensure that

a Ground Security Coordinator conducts

and documents an annual evaluation of

each person assigned screening duties

and may continue that person’s

employment in a screening capacity

only upon the determination by the

Ground Security Coordinator 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 its

approved security program; and

(3) Demonstrates the current

knowledge and skills necessary to

courteously, vigilantly, and effectively

perform screening functions.

(e) Paragraphs (a) through (d) of this

section do not apply to those screening

functions conducted outside the United

States over which the air carrier does

not have operational control. In the

event the air carrier is unable to

implement paragraphs (a) through (d) of

this section for screening functions

outside the United States, the air carrier

shall notify the Administrator of those

air carrier stations so affected.

(f) At locations outside the United

States where the air carrier has

operational control over a screening

function, the air carrier may use

screeners who do not meet the

requirements of paragraph (a)(3) of this

section, provided that at least one

representative of the air carrier who has

the ability to functionally read and

speak English is present while the air

carrier’s passengers are undergoing

security screening.

§ 108.211 Law enforcement personnel.

(a) At airports within the United

States not required to hold a security

program under part 107 of this chapter,

each air carrier shall—

(1) For operations described in

§ 108.101(a) (1), (2), and (3), provide for

law enforcement personnel meeting the

qualifications and standards specified in

§§ 107.213 and 107.215 of this chapter;

and

(2) For operations described in

§ 108.101(a)(4) of this part for which

screening is not required shall—

(i) Arrange for law enforcement

personnel meeting the qualifications

and standards specified in § 107.215 of

this chapter to be available to respond

to an incident; and

(ii) Provide its employees, including

crewmembers, current information

regarding procedures for obtaining law

enforcement assistance at that airport.

(b) At airports required to hold a

security program under part 107 under

this chapter, each air carrier conducting

operations described in § 108.101(a)(4)

of this part shall:

(1) Arrange with the airport operator

for law enforcement personnel meeting

the qualifications and standards

specified in § 107.215 of this chapter to

be available to respond to an incident;

and

(2) Provide its employees, including

crewmembers, current information

regarding procedures for obtaining law

enforcement assistance at that airport.

§ 108.213 Carriage of weapons.

(a) Accessible weapon: Screening

conducted. Notwithstanding § 108.201,

a person may have a deadly or

dangerous weapon accessible to him or

her while aboard an aircraft for which

screening is required, if the following

are met:

(1) The person in possession of the

weapon—

(i) Is a Federal law enforcement

officer or a full-time municipal, county,

or state law enforcement officer

receiving remuneration for his or her

services;

(ii) Is sworn and commissioned to

enforce criminal statutes;

(iii) Is currently trained and certified

as a law enforcement officer and is

armed in the performance of these

duties;

(iv) Is authorized by the employing

agency to have the weapon in

connection with assigned duties; and

(v) Has completed the training

program ‘‘Law Enforcement Officers

Flying Armed’’ as required by the FAA.

(2) The person having the weapon

needs to have the weapon accessible in

connection with the performance of his

or her duties from the time he or she

would otherwise check the weapon in

accordance with paragraph (f) of this

section until the time it would be

claimed after deplaning. The need to

have the weapon accessible during the

period of time set forth in this paragraph

shall be based on one of the following:

(i) The provision of protective escort

(assigned to principle or advance team),

(ii) The conduct of a hazardous

surveillance operation.

(iii) Prisoner escort, in accordance

with § 108.215 of this part.

(iv) Status as an FBI Special Agent.

(v) FAA Federal Air Marshal on

mission status.

(vi) Law enforcement personnel on

official travel required to report to

another location, armed and

immediately prepared for duty.

(3) The air carrier is notified of the

flight(s) on which the armed person

needs to have the weapon accessible at

least 1 hour, or in an emergency as soon

as practicable, before departure.

(4) If the armed person is a State,

County, or municipal law enforcement

personnel, the person must present an

original letter of authority, signed by an

authorizing official from his or her

employing agency, confirming the need

to travel armed and detailing the

itinerary of the travel while armed, and

stating that the person has completed

the training program ‘‘Law Enforcement

Officers Flying Armed’’ as required by

the FAA.

(5) The armed person identifies

himself or herself to the air carrier by

presenting bona fide credentials that

include clear, full-face picture,

signature, and the signature of the

authorizing official of service or the

official seal of service. A badge, shield,

or similar device may not be used as the

sole means of identification.

(6) The armed person identifies

himself or herself and presents a copy

of the form required by the air carrier to

a crewmember prior to departure.

(7) The air carrier—

(i) Verifies that the armed person is

familiar with its procedures for carrying

a firearm aboard its aircraft before the

time the person boards the aircraft;

(ii) Ensures that the armed person has

fully completed and signed a form

required by the air carrier prior to

boarding or entering a sterile area which

states that the person has completed the

training program ‘‘Law Enforcement

Officers Flying Armed’’ as required by

the FAA;

(iii) Ensures that the identity of the

armed person is known to each law

enforcement personnel and each

employee of the air carrier responsible

for security during the boarding of the

aircraft;

(iv) Notifies the pilot in command,

other appropriate crewmembers, and

any other person authorized to have a

weapon accessible to him or her aboard

the aircraft, of the location of each

authorized armed person aboard the

aircraft; and

(v) Ensures that the information

required in paragraphs (a) (3) and (4) of
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this section is furnished to the flight

crew of each additional connecting

flight by the Ground Security

Coordinator or other designated agent at

each location.

(b) Accessible weapon: Screening not

conducted. No person may, while on

board an aircraft operated by an air

carrier for which screening is not

conducted, carry on or about his or her

person a deadly or dangerous weapon,

either concealed or unconcealed. This

paragraph does not apply to Federal and

full-time municipal, county, or state law

enforcement officers receiving

remuneration for their services, who—

(1) Are sworn and commissioned to

enforce criminal statutes;

(2) Are currently trained and certified

as law enforcement officers and armed

in the performance of these duties;

(3) Are authorized by the employing

agency to have the weapon in

connection with assigned duties; and

(4) Have completed the training

program ‘‘Law Enforcement Officers

Flying Armed’’ as required by the FAA,

and have notified the air carrier prior to

boarding the flight.

(c) Alcohol, No air carrier may serve

any alcoholic beverage to a person

having a weapon accessible to him or

her nor may such person consume any

alcoholic beverage while aboard an

aircraft operated by the air carrier. No

person may have a weapon accessible if

that person has consumed an alcoholic

beverage within the previous 8 hours.

(d) Location of weapon. Any person

traveling aboard an aircraft while armed

must keep their weapon concealed and

out of view, either on their person or in

immediate reach if carried in any other

type of cases, pouch, or container. No

person shall place a weapon in an

overhead storage bin.

(e) Checked baggage. No air carrier

may knowingly permit any person to

transport, nor may an person transport

or offer for transport, any explosive,

incendiary, destructive substance, or a

loaded firearm in checked baggage

aboard an aircraft. For the purpose of

this section, a loaded firearm means a

firearm which has a live round of

ammunition, or any component thereof,

in the chamber or in a magazine or

cylinder inserted in the firearm.

(f) Firearms in checked baggage. No

air carrier may knowingly permit any

person to transport, nor may any person

transport or offer for transport, any

unloaded firearm(s) in checked baggage

aboard an aircraft unless—

(1) The passenger declares to the air

carrier, either orally or in writing before

checking the baggage, that any firearm

carried in the baggage is unloaded;

(2) The firearm is carried in a

container that is hard-sided appropriate

for air transportation;

(3) The container in which it is

carried is locked, and only the

passenger checking the baggage retains

the key or combination; and

(4) The baggage containing the firearm

is carried in an area other than the

flightcrew compartment, that is

inaccessible to passengers.

(g) Military. Paragraphs (a), (b), (d),

and (f) of this section do not apply to

the carriage of firearms aboard air

carrier flights conducted for the military

forces of the Government of the United

States when the total cabin load of the

aircraft is under exclusive use by those

military forces when the following

conditions are met—

(1) No firearm is loaded and all bolts

to such firearms are locked in the safe

position; and

(2) The air carrier is notified by the

unit commander or officer in charge of

the flight before boarding that weapons

will be carried aboard the aircraft.

(h) Federal Air Marshals. The

requirements of paragraphs (a)(6) and

(a)(7) of this section do not apply to

Federal Air Marshals performing official

duties on a flight.

§ 108.215 Carriage of passengers under

the control of armed law enforcement

escorts.

(a) Except as provided in paragraph

(e) of this section, no air carrier required

to conduct screening under a security

program may carry a passenger in the

custody of an armed law enforcement

escort aboard an aircraft for which

screening is required unless, in addition

to the requirements in § 108.213 of this

part, the following requirements are

met:

(1) The armed law enforcement escort

is required by appropriate authority to

maintain custody and control over an

individual aboard an aircraft.

(2) The agency responsible for control

of the prisoner determines whether the

prisoner is considered a high risk, that

is, an escape risk or charged with, or

convicted of, a violent crime, or a law

risk.

(3) The armed law enforcement

escort(s) notifies the air carrier at least

24 hours before the scheduled

departure, or, if that is not possible, as

far in advance as possible of the

following—

(i) The identity of the passenger to be

carried and the flight on which it is

proposed to carry the passenger;

(ii) Any pre-existing medical

conditions of the prisoner generating

unusual behavior which may create a

security risk to other passengers; and

(iii) Whether or not the passenger is

considered to be a high risk or a low

risk.

(4) The armed law enforcement

escort(s) arrive at the check-in counter

at least 1 hour prior to the schedule

departure.

(5) A high risk prisoner shall be under

the control of at least two armed law

enforcement escorts and no other

prisoners shall be under the control of

those two armed law enforcement

escorts.

(6) No more than one high risk

prisoner shall be carried on the aircraft.

(7) Except as stated in paragraph (a)(9)

this section, a low risk prisoner shall be

under the control of at least one armed

law enforcement escort, and no more

than two low risk prisoners shall be

carried under the control of any one

armed law enforcement escort.

(8) For a flight exceeding 4 hours’

duration, each two risk prisoners shall

be under the control of at least two

armed law enforcement escorts, and no

more than two low risk prisoners shall

be under the control of any two armed

law enforcement escorts.

(9) The air carrier is assured, prior to

departure, by each law enforcement

escort that each passenger under the

control of the escort has been searched

and does not have on or about his or her

person or property anything that can be

used as a deadly or dangerous weapon.

(10) For each passenger under the

control of an armed law enforcement

escort, the following requirements shall

be met:

(i) The passenger under escort shall be

restrained from full use of hands by an

appropriate device which is then

attached to a separately locked waist

restraint device that provides for

minimum movement of the person’s

hands. Leg irons shall not be used;

(ii) The passenger under escort shall

be boarded before any other passengers

when boarding at the airport where the

flight originates, and deplaned at the

destination after all other deplaning

passengers have deplaned; and

(iii) The passenger under escort shall

be seated in a seat that is neither located

in any passenger lounge area nor located

next to or directly across from any exit

and, when practicable, the air carrier

should seat the prisoner in the rearmost

seat of the passenger cabin.

(11) An armed law enforcement escort

having control of a passenger shall be

seated between the passenger and any

aisle.

(b) No air carrier operating an aircraft

under paragraph (a) of this section

shall—

(1) Serve food or beverage or provide

metal eating utensils to a passenger
41756 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

under the control of a law enforcement

escort while aboard the aircraft unless

authorized to do so by the armed law

enforcement escort.

(2) Serve the passenger under the

control of an armed law enforcement

escort any alcoholic beverage while

aboard the aircraft.

(c) Each armed law enforcement

escort under the provisions of paragraph

(a) of this section shall, at all times,

accompany the passenger under the

control of the escort and keep the

passenger under surveillance while

aboard the aircraft.

(d) No passenger under the control of

an armed law enforcement escort shall

drink alcoholic beverages while aboard

the aircraft.

(e) This section does not apply to the

carriage of passengers under voluntary

protective escort, or under escort by

unarmed law enforcement officers.

§ 108.217 Transportation of Federal Air

Marshals.

(a) Each air carrier shall carry Federal

Air Marshals, in the number and

manner specified by the Administrator,

on each scheduled passenger operation,

public charter passenger operation, and

private charter passenger operation

designated by the Administrator.

(b) Each Federal Air Marshal shall be

carried on a first priority basis and

without charge while on official duty,

including positioning and repositioning

flights. When a Federal Air Marshal is

assigned to a scheduled flight that is

canceled for any reason, the air carrier

shall carry that Marshal without charge

on another flight as designated by the

Administrator.

(c) Each air carrier shall assign the

specific seat requested by a Federal Air

Marshal who is on official mission

status.

(d) Each air carrier shall restrict any

information concerning the presence,

seating, names, and purpose of Federal

Air Marshals at any station or on any

flight to those persons within

operational need to know.

(e) Each air carrier shall permit any

FAA Special Agent, including Federal

Air Marshals, to observe the search of

the aircraft prior to the departure.

§ 108.219 Security of aircraft and facilities

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 to

perform the following control functions

with respect to each aircraft passenger

operation for which screening is

required:

(a) Prevent unauthorized access to

areas controlled by the air carrier under

an exclusive area agreement in

accordance with § 107.111 of this

chapter.

(b) Prevent unauthorized access to

each aircraft.

(c) Ensure that checked baggage

carried in the aircraft is received by a

responsible air carrier agent.

(d) Ensure that proper identification

and, where appropriate, proper

certification is obtained by a responsible

air carrier agent from each entity

shipping cargo prior to the acceptance

of these items for transport aboard the

passenger aircraft.

(e) Ensure that cargo and checked

baggage carried aboard the aircraft, after

being accepted for transport by the air

carrier, are safeguarded in a manner that

prevents the unauthorized introduction

of any explosive, incendiary, deadly or

dangerous weapon, or destructive

substance aboard the aircraft, or access

to the tendered cargo or checked

baggage by any person other than an air

carrier employee or its agent.

(f) Conduct a security inspection of

each aircraft before placing it in service.

(g) Each air carrier shall comply with

the procedures for identifying vehicles

set forth in the FAA-approved airport

security program required by § 107.211

of this chapter.

§ 108.221 Employment history,

verification, and criminal history records

checks.

(There is a separate rulemaking action

that will result in new text for this

section. To avoid confusion, the section

is not repeated here. See the preamble

for further explanation.)

§ 108.223 Personnel Identification System.

Each air carrier shall establish and

implement a personnel identification

system for its flight and cabin

crewmembers to include:

(a) Positive, accurate identification

and expiration dates that can be readily

recognized as accurate and current.

(b) Issuance only after satisfactory

completion of the required access

investigation.

(c) Control and accountability

standards in accordance with an FAAapproved security program.

(d) Periodic review, recertification,

and renewal or forfeiture.

§ 108.225 Security coordinators and

crewmembers, training.

(a) No air carrier may use any person

as a Ground Security Coordinator

unless, within the preceding 12-

calendar months, that person has

satisfactorily completed the security

training as specified in the air carrier’s

approved security program.

(b) No air carrier may use any person

as an In-Flight Security Coordinator or

crewmember on any domestic or

international flight unless, within the

preceding 12-calendar months or within

the time period specified in an

Advanced Qualifications Program

approved under SFAR 58, that person

has satisfactorily completed the security

training required by § 121.417(b)(3)(v) or

§ 135.331(b)(3)(v) of this chapter and as

specified in the air carrier’s approved

security program.

(c) The requirements prescribed in

paragraph (a) of this section apply to all

security-related functions performed for

the air carrier whether by a direct

employee or a contractor employee.

(d) With respect to training conducted

under this section, whenever a person

completes recurrent training 1 month

earlier, or 1 month after the date of

original security certification, that

person is considered to have completed

the training in the calendar month in

which it was required.

§ 108.227 Training and knowledge of

persons with security-related duties.

(a) No air carrier may use any person

to perform any security-related duties

unless that person has received training

as specified in its approved security

program including their responsibilities

in § 108.9 and § 108.103 of this part.

(b) Each air carrier shall ensure that

individuals performing security-related

functions for the air carrier have

knowledge of the provisions of part 108,

applicable Security Directives and

Information Circulars promulgated

pursuant to § 108.305 of this part, the

approved airport security program, and

the air carrier’s security program to the

extent that such individuals need to

know in order to perform their duties.

(c) With respect to training conducted

under this section, whenever a person

completes recurrent training in the

calendar month before or the calendar

month after the calendar month in

which that training is required, that

person is considered to have completed

the training in the calendar month in

which it was required.

(d) All training prescribed in

paragraphs (a), (b), and (c) of this

section must be approved by the

Administrator.

(e) The requirements prescribed in

paragraphs (a), (b), and (c) of this

section apply to all security-related

functions performed for the air carrier

whether by a direct employee or a

contractor employee.
Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules 41757

Subpart D—Threat and Threat

Response

§ 108.301 Security Coordinators.

(a) Air Carrier Security Coordinator.

Each air carrier shall designate and use

an Air Carrier Security Coordinator

(ACSC). The ACSC shall serve as the air

carrier’s primary contact for securityrelated activities and communications

with the FAA, as set forth in the

security program.

(b) Ground Security Coordinator. Each

air carrier shall designate and use a

Ground Security Coordinator for each

domestic and international flight to

carry out the Ground Security

Coordinator duties specified in the air

carrier’s approved security program.

The Ground Security Coordinator at

each airport shall conduct the following

daily:

(1) A review of all security-related

functions for effectiveness and

compliance with the part, the air

carrier’s security program, and

applicable Security Directives.

(2) Immediate initiation of corrective

action for each instance of

noncompliance with this part, the air

carrier’s security program, and

applicable Security Directives. At

foreign airports where such security

measures are provided by an agency or

contractor of a host government, the air

carrier shall notify the Administrator for

assistance in resolving noncompliance

issues.

(c) In-flight Security Coordinator.

Each air carrier shall designate and use

the pilot in command as the In-flight

Security Coordinator for each domestic

and international flight to perform

duties specified in the air carrier’s

approved security program.

§ 108.303 Bomb or air piracy threats.

(a) Flight: Notification. Upon receipt

of a specific and credible threat to the

security of a flight, the air carrier shall—

(1) Immediately notify the ground and

in-flight security coordinators of the

threat, any evaluation thereof, and any

measures to be applied; and

(2) Ensure that the in-flight security

coordinator notifies all crewmembers of

the threat, any evaluation thereof, and

any measures to be applied.

(3) Immediately notify the appropriate

airport operator.

(b) Flight: Inspection. Upon receipt of

a specific and credible threat to the

security of a flight, each air carrier shall

attempt to determine whether or not any

explosive or incendiary is present by

doing the following:

(1) Conduct a security inspection on

the ground before the next flight or, if

the aircraft is in flight, immediately after

its next landing.

(2) If the aircraft is on the ground,

immediately deplane all passengers and

submit that aircraft to a security search.

(3) If the aircraft is in flight,

immediately advise the pilot in

command of all pertinent information

available so that necessary emergency

action can be taken.

(c) Ground Facility. Upon receipt of a

specific and credible threat to a specific

ground facility at the airport, the air

carrier shall:

(1) Immediately notify the appropriate

airport operator.

(2) Inform all other air carriers at the

threatened facility.

(3) Conduct a security inspection.

(d) Notification. Upon receipt of any

bomb threat against the security or a

flight or facility, or upon receiving

information that an act or suspected act

of air piracy has been committed, the air

carrier also shall notify the

Administrator. If the aircraft is in

airspace under other than U.S.

jurisdiction, the air carrier shall also

notify the appropriate authorities of the

State in whose territory the aircraft is

located and, if the aircraft is in flight,

the appropriate authorities of the State

in whose territory the aircraft is to land.

Notification of the appropriate air traffic

controlling authority is sufficient action

to meet this requirement.

§ 108.305 Security Directives and

Information Circulars.

(a) When a threat against civil

aviation becomes known, the Assistant

Administrator may issue an information

circular to notify air carriers of the

general situation or a Security Directive

setting forth mandatory

countermeasures to an assessed threat.

(b) Each air carrier required to have an

approved air carrier security program

shall comply with each Security

Directive issued to the air carrier by the

Administrator, within the time

prescribed in the Security Directive for

compliance.

(c) Each air carrier that receives a

Security Directive shall-

(1) Immediately upon receipt from the

FAA, or within the time prescribed in

the Security Directive, verbally

acknowledge receipt of the Security

Directive to the Principal Security

Inspector, followed by written

acknowledgment of receipt within 24

hours;

(2) Not later than 72 hours after

delivery by the FAA, or within the time

prescribed in the Security Directive,

specify the method by which the

measures in the Security Directive have

been implemented (or will be

implemented, if the Security Directive is

not yet effective) by providing the FAA

a copy of the written measures and

implementation procedures issued to (or

that will be issued to) each affected air

carrier station; and

(3) Ensure that information regarding

the Security Directive and measures

implemented in response to the Security

Directive are distributed to specified

personnel, as prescribed in the Security

Directive, and to other personnel with

an operational need-to-know.

(d) In the event that the air carrier is

unable to implement paragraph (b)(2) of

this section, the air carrier shall submit,

within 72 hours after receipt of the

Security Directive, proposed alternative

measures and the basis for submitting

the alternative measures to the

Administrator for approval. Within 48

hours after receiving the air carrier’s

proposed alternative measures, the

Administrator either approves the

proposed alternative measures or

notifies the air carrier to modify the

alternative measures to comply with the

requirements of the Security Directive.

The air carrier shall implement any

alternative measures approved by the

Administrator within 72 hours of

receipt of notification of the

Administrator’s determination.

(e) Each air carrier that receives a

Security Directive or Information

Circular and each person who receives

information from a Security Directive or

Information Circular shall:

(1) Restrict the availability of the

Security Directive or Information

Circular, and information contained in

either document, to those persons with

an operational need to know.

(2) Refuse to release the Security

Directive or Information Circular, and

information contained in either

document, to persons other than those

with an operational need-to-know

without the prior written consent of the

Administrator.

(f) The air carrier security coordinator,

or an individual designated by the air

carrier, may receive classified

information related to national security

if the air carrier security coordinator, or

designee, has applied to the

Administrator and received the

appropriate security clearances.

§ 108.307 Contingency plan.

Each air carrier shall adopt a

contingency plan and shall:

(a) Implement its contingency plan

when directed by the Administrator.

(b) Conduct reviews and exercises of

its contingency plan, and participate in

each airport operator’s test of the

airport’s contingency plan.
41758 Federal Register / Vol. 62, No. 148 / Friday, August 1, 1997 / Proposed Rules

Issued in Washington, DC on July 21, 1997.

Anthony Fainberg,

Director, Office of Civil Aviation Security

Policy and Planning.

[FR Doc. 97–19697 Filed 7–31–97; 8:45 am]

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