12724 Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 108

[Docket No. 28852; Notice No. 97–3]

RIN 2120–AG31

Certification of Screening Companies

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Advance notice of proposed

rulemaking (ANPRM).

SUMMARY: The FAA seeks public

comment on issues relating to the

certification of screening companies

(other than air carriers) by the FAA, and

other enhancements to the screening by

air carriers of passengers and property

that will be carried in the cabin of an

aircraft, and of checked baggage. This

advance notice responds to a

recommendation made by the White

House Commission on Aviation Safety

and Security, and to a requirement in

the Federal Aviation Reauthorization

Act of 1996. It is intended to improve

the screening of passengers, property,

and baggage. After reviewing any

comments made in response to this

advance notice, the FAA will issue a

notice of proposed rulemaking with

specific regulatory proposals.

DATES: Comments must be received on

or before May 1, 1997.

ADDRESSES: Comments on this notice

may be delivered or mailed, in

triplicate, to: Federal Aviation

Administration, Office of the Chief

Counsel, Attn: Rules Docket (AGC–200),

Docket No. 28852, Room 915G, 800

Independence Avenue, SW.,

Washington, DC 20591. Comments

submitted must be marked: ‘‘Docket No.

28852.’’ Comments may also be sent

electronically to the following internet

address: 9-nprm-cmtsfaa.dot.gov.

Comments may be examined in Room

915G on weekdays, except Federal

holidays, between 8:30 am. and 5:00

p.m.

FOR FURTHER INFORMATION CONTACT:

Penny J. Anderson, Office of Civil

Aviation Security Policy and Planning,

ACP–100, Federal Aviation

Administration, 800 Independence

Avenue, SW., Washington, DC 20591,

telephone (202) 267–5183.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

submit comments by providing such

written data, views, or arguments as

they may desire. Comments relating to

the environmental, energy, federalism,

or economic impact are also invited.

Substantive comments should be

accompanied by cost estimates.

Comments must identify the regulatory

docket or notice number and be

submitted in triplicate to the Rules

Docket address specified above.

Except as noted below, all comments

received, as well as a report

summarizing each substantive public

contact with FAA personnel on this

rulemaking, will be filed in the docket.

The docket is available for public

inspection before and after the comment

closing date.

The Associate Administrator for Civil

Aviation Security has determined that

air carrier security programs required by

part 108 contain sensitive security

information. As such, the availability of

information pertaining to air carrier

security programs is governed by 14

CFR part 191 and 14 CFR 108.7(b) (4)

and (5). Air carriers who wish to

comment on this notice should be

cautious not to include information

contained in the security program in

their comments.

All comments received on or before

the closing date will be considered by

the Administrator before taking action

on this proposed rulemaking. Late-filed

comments will be considered to the

extent practicable.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice

must include a pre-addressed, stamped

postcard with those comments on which

the following statement is made:

‘‘Comments to Docket No. 28852.’’ The

postcard will be date stamped and

mailed to the commenter.

Availability of ANPRMs

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), the

Federal Register’s electronic bulletin

board service (telephone: 202–512–

1661), or the FAA’s Aviation

Rulemaking Advisory Committee

Bulletin Board service (telephone: 202–

267–5948).

Internet users may reach the FAA’s

web page at http://www.faa.gov or the

Federal Register’s webpage at http://

www.access.gpo.gov/suldocs for

access to recently published rulemaking

documents.

Any person may obtain a copy of this

ANPRM by submitting a request to the

Federal Aviation Administration, Office

of Rulemaking, ARM–1, 800

Independence Avenue, SW.,

Washington, DC 20591, or by calling

(202) 267–9680. Communications must

identify the notice number or docket

number of this ANPRM.

Persons interesting in being placed on

the mailing list for future ANPRMs or

NPRMs should request from the above

office a copy of Advisory Circular No.

11–2A, Notice of Proposed Rulemaking

Distribution System, that describes the

application procedure.

Background

Following the tragic crash of TWA

800 on July 17, 1996, the President

created the White House Commission

on Aviation Safety and Security (the

Commission). The Commission issued

an initial Report on September 9, 1996,

with 20 specific recommendations for

improving security, one of which was

the development of uniform

performance standards for the selection,

training, certification, and

recertification of screening companies

and their employees.

On October 9, 1996, the President

signed the Federal Aviation

Reauthorization Act of 1996, Pub.L.

104–264 (the Act). Section 302 provides:

The Administrator of the Federal Aviation

Administration is directed to certify

companies providing security screening and

to improve the training and testing of

security screeners through development of

uniform performance standards for providing

security screening services.

The rulemaking initiated by this

advance notice is intended to provide

an initial response to these mandates. It

requests comments on improving the

screening system and on the

certification of screening companies.

Rulemaking Process

This ANPRM does not propose

specific regulatory changes. Rather, it

requests comments and suggestions as

to what regulatory changes should be

made to carry out the Act and the

Commission’s recommendations. After

review of all of the comments submitted

in response to his ANPRM the FAA will

issue a notice of proposed rulemaking

(NPRM), proposing specific regulations.

Interested persons will have the

opportunity to comment on those

proposed changes before a final rule is

adopted.

History and Current Requirements

Title 49, United Stated Code, section

44901, requires the FAA to prescribe

regulations requiring air carriers to

screen all passengers and property that

will be carried in a cabin of an aircraft

in air transportation or intrastate air

transportation. This screening must be

done before the aircraft is boarded,

using weapon-detecting facilities or
Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Proposed Rules 12725

procedures used or operated by an

employee or agent of an air carrier,

intrastate air carrier, or foreign air

carrier.

Part 108 of Title 14, Code of Federal

Regulations, contains rules in §§ 108.9,

108.17, and 108.20 for the conduct of

screening operations. These rules,

which are available to the general

public, provide basic standards for the

screeners, equipment, and procedures to

be used. In addition, each air carrier that

is required to conduct screening has a

non-public security program (issued

under §§ 108.5 and 108.7) that contains

detailed requirements for screening.

Essentially all approved air carrier

security programs are actually the Air

Carrier Standard Security Program

(ACSSP). The ACSSP provides identical

measures for all air carriers to use in

most situations. Individual air carriers

may request alternate procedures in

specific situations to allow more

efficient operations, where the required

level of security can be maintained.

There are several means by which an

air carrier may conduct screening. It

may use its own employees. It may

contract with another company to

conduct the screening in accordance

with the air carrier’s security program.

It may contract with another air carrier

to conduct screening. In each case, the

air carrier is required to provide

oversight to ensure that all requirements

are met. For example, § 108.29 requires

that the air carrier’s ground security

coordinator (GSC) review securityrelated functions and initiate corrective

action for noncompliance, and

§ 108.31(d) requires that the GSC

conduct an annual evaluation of each

person assigned screening duties.

In addition to screening persons and

property to be carried in the cabin of an

aircraft, § 108.9(a) requires air carriers to

prevent or deter the carriage of any

explosive or incendiary in checked

baggage. The ACSSP contains various

measures to carry out this duty,

including screening of checked baggage.

The term ‘‘screening location’’ refers

to any site at which the screening of

passengers, property, or baggage is

conducted. A ‘‘screening checkpoint’’ is

a type of screening location.

Specifically, a ‘‘screening checkpoint’’

refers to a screening location at which

the screening of passengers and

property that will be carried in the cabin

of an aircraft is conducted. Another

example of a specific type of screening

location would be a site at which the

screening of checked baggage is

conducted.

Some screening locations are used by

only one air carrier. However, most

locations are used by more than one air

carrier (often referred to as ‘‘joint-use

checkpoints’’), resulting in more than

one air carrier having the regulatory

responsibility to oversee the operation

of the location. The use of the ACSSP

ensures that all air carriers using the

location are held to the same standards.

Foreign air carriers that operate in the

United States are required to have a

security program and carry out security

procedures under 14 CFR 129.25,

129.26, and 129.27. It is anticipated that

foreign air carriers will be subject to the

same provisions for the use of

certificated screening companies as U.S.

air carriers, and comment is specifically

invited on this.

General Discussion and Request for

Comments

There are a number of issues that arise

in connection with certification of

screening companies. The FAA requests

comments and suggestions on all issues

related to the certification of screening

companies and the improvement of

screening. The FAA will consider all

comments and suggestions. The

following are issues of particular

interest:

1. Oversight by Air Carriers

There has been no change to the

requirement in 49 U.S.C. 44901(a) that

screening of passengers and property

that will be carried in the cabin of an

aircraft in air transportation or intrastate

air transportation be conducted by an

employee or agent of an air carrier.

Further, the FAA does not anticipate

any change in the air carrier’s

responsibility for screening of checked

baggage. Accordingly, certificated

screening companies must be agents of

air carriers, and air carriers will remain

ultimately responsible for the proper

screening of passengers, property, and

baggage. However, as certificate holders,

the screening companies will be

responsible for carrying out their

regulatory duties to properly screen

passengers, property, and baggage. In

the case of a failure to properly screen,

both regulated parties, i.e., the air

carriers and the certificated screening

company, potentially bear

responsibility.

This gives rise to questions about how

air carriers should select a screening

company, and then oversee the

operations of that screening company,

and the extent to which screening

companies should be held directly

responsible for the operation of

screening locations. The fact that

screening companies will have

certificates will not relieve air carriers of

responsibility for screening. These

questions are similar to others that have

been dealt with regarding air carrier

oversight of contractors and employees.

For example, the FAA recently has

emphasized to air carriers the need for

stronger oversight of certificated repair

stations performing maintenance on

their aircraft. As another example, the

FAA currently requires pilots to have

certificates, yet under Title V of the Act,

the air carrier must obtain extensive

information on pilots before they are

hired.

The FAA anticipates that details of

selecting a screening company, and then

overseeing the operations of that

screening company, will be placed in

the security programs. However, the

FAA requests comments as to the

general rules that should appear in part

108 regarding what guidelines an air

carrier should follow with respect to

selection and oversight of a screening

company. For example, what

information should an air carrier collect

prior to contracting with a screening

company. Of what should air carrier

oversight of a screening company

consist? Should it include periodic

inspections? Training audits? Records

audit? Screening surveillance?

Unannounced, anonymous testing?

Other surveillance?

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests estimates of the costs of

carrying out oversight responsibilities.

2. Joint-Use Screening Locations

The FAA is evaluating how best to

address common, or joint-use screening

locations. Currently, joint-use screening

locations are handled in a number of

ways. Some locations have a managing

air carrier that has accepted

responsibility for administrative

functions relating to the location, and

for responsibility in the event of certain

security violations. At other checkpoints

the responsibility for these events may

be spread among many air carriers.

The FAA requests comments on the

best method of structuring air carrier

selection of a screening company for

joint use screening locations, and

oversight of that screening company’s

activities. Should there be an agreement

between all affected air carriers? What

form should this agreement take? How

should it be documented? How much

involvement should air carriers other

than the managing air carrier have

regarding the day to day and long-term

activities of the location?

3. Screening Security Program

As discussed above, there currently

exist requirements for the screening of

passengers, property, and baggage to be

carried aboard air carrier aircraft, in part
12726 Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Proposed Rules

108 and in the ACSSP. The ACSSP

provides a uniform standard for

screening, which assists in having a

coordinated effort when more than one

air carrier is using the same screening

location. Further, the ACSSP is made

available only to those persons with an

operational need to know, not to the

general public, in order to avoid

unauthorized persons from obtaining

information that could be used to

attempt to defeat the security system. It

is evident that large portions of the

requirements for screening by screening

companies must be in a non-public

security program, just as they are for air

carriers.

The FAA is considering establishing

by regulation a uniform security

program for use by all air carriers and

screening companies. This screening

security program would incorporate the

screening standards currently provided

in the ACSSP. This screening security

program could be incorporated as part

of the ACSSP (as it is now) or be

developed as a separate security

program for screening companies. In

this case, all air carriers and certificated

screening companies would be subject

to the same standards for conducting

screening. Screening companies would

be made directly responsible for

protecting the security program from

access by unauthorized persons, similar

to the requirement on air carriers under

§ 108.7(b) (4) and (5). There would be no

confusion as to which air carrier’s

security program a screening company

would carry out at a given location.

The FAA requests comments on this

approach, and requests suggestions as to

any other means that might be used to

ensure that uniform standards are used

to perform screening, and to ensure that

the standards are protected from

unauthorized use.

It has long been recognized that

screener performance standards must be

measurable. Although the FAA intends

to begin measuring screener

performance using the Threat Image

Projection System (TIPS), it remains

open to suggestions for other methods of

evaluating performance.

In addition to substantive comments

or suggestions relating to this issue, the

FAA also requests estimates of the costs

of implementing and carrying out a

uniform security program.

4. Screener Training

The FAA has been working on ways

to improve screener training, such as

computer-based instruction. We

anticipate that the details of most such

changes will, of necessity, be placed in

the ACSSP. The FAA is also considering

a requirement to incorporate into each

security program the specific

curriculum to be used to train screeners.

This would require the approval of the

training curriculum by the FAA.

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests any cost information that

would assist it in evaluating the cost

impact of the commenter’s suggested

changes to training methods or

curriculum.

5. Qualifications and Operations of

Screening Companies

The FAA is considering what

qualifications companies should be

required to demonstrate before the FAA

issues a screening company certificate.

The FAA requests comments on what

should be the minimal showings to

qualify for a screening company

certificate.

Local and National Qualifications

A screening company may carry out

its functions at many different locations

throughout the country. Each location

may have different types of equipment

in place to conduct screening and to

train screeners. The FAA requests

comments on whether screening

companies should be qualified on a

national basis, or should companies be

required to make specific showings of

qualification for each location?

Aviation Screening Experience

The screening of passengers, property,

and baggage at airports is a unique task.

While there are some similarities to

security functions performed in other

settings (such as security at sports

arenas and other public events), there

are many differences. The FAA is

considering whether a screening

company should be required to have

management personnel with specialized

aviation experience or training, similar

to that required for various air carrier

management personnel under §§ 119.65

and 119.67.

Screening Equipment

Under current requirements, the

equipment used for screening (such as

x-ray machines and metal detectors)

must be approved by or acceptable to

the FAA. Further, the equipment must

be checked or calibrated on a specified

interval, and taken out of service if it

fails to perform as required. Currently,

most equipment is owned by air

carriers, and that seems likely to remain

true in the future. The FAA requests

comments on the responsibility the air

carriers and the screening companies

each should have for both the

equipment initially obtained to use at

each location and the periodic checking

and testing of the equipment, as well as

its continued use after failure.

Training Equipment

Currently training equipment

generally is owned by air carriers, and

there may be different training programs

in use by different air carriers. However,

certificated screening companies will be

responsible for ensuring that their

screeners are properly trained. This

raises the question whether each

screening company should use whatever

program is in place at each airport, or

should be responsible for conducting its

own training using its own equipment.

The use of different training programs at

different airports by the same screening

company may be hard to manage, and

make it difficult to determine to what

standard the screening company must

comply. The FAA requests comments

on how training of screeners should be

accomplished. For example, should

training programs be approved for each

site rather than for the screening

company as a whole? Also, how should

training for use of new equipment be

addressed?

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests estimates of the costs of

meeting any of the qualifications or

operational requirements described

above.

6. Screeners

There is a concern that screeners

should be encouraged to have a stronger

sense of professionalism. There are a

number of potential ways to accomplish

this.

It has been suggested that it should be

easier for screeners to switch

employment from one screening

company to another (screener mobility).

Currently, when a screener wishes to

switch companies, or one company

stops operating a screening location for

an air carrier and is replaced by another

screening company, the first company

does not necessarily transfer the training

records to the new company. The

screeners then must completely

requalify for the new company. The

FAA is considering whether there

should be a means for certain records to

be transferred, at the screener’s request,

to ease the transition.

Mobility of documentation also raises

issues in regard to the accuracy of the

documents, screener rights relating to

corrections to the documents, and

screening company liability in the event

an inaccurate document is transferred.

Another means of encouraging

professionalism is to provide a special

recognition of the screener’s successful

completion of training.
Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Proposed Rules 12727

The FAA requests comments on ways

that the regulations could encourage a

stronger sense of professionalism in

screeners.

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests estimates of the costs of

increasing the professionalism of the

screener position through

implementation of the measures

described above and any

recommendation made by the

commenter.

7. Screening by Air Carriers

Some air carriers conduct screening

with their own employees. They may do

so at joint-use locations, and therefore

conduct screening on behalf of other air

carriers. The FAA is considering

whether air carriers that conduct

screening should be subject to the same

standards as certificated screening

companies. These standards would

include those issues raised in this

document that identify possible

screening company requirements, such

as the qualification of management and

screener training. They might also

include oversight by other air carriers

for which they screen.

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests estimates of the costs of

imposing the same requirements on air

carriers as those that will be imposed

upon independent screening companies.

8. New Screening Companies

There are about 70 screening

companies (other than air carriers)

currently performing passenger,

property, and baggage screening at U.S.

airports. We assume other companies

will be formed in the future. These new

companies may have no background or

experience in aviation security

screening. These screening companies

will be required to have a certificate

prior to beginning screening. The FAA

invites coments on how to ensure the

qualifications of a company that has no

aviation screening experience before it

begins aviation screening.

The FAA is considering whether there

should be a period of provisional

certification for new screening

companies that have not demonstrated

an ability to screen in the aviation

environment. This may include

additional measures and/or constraints

upon such new companies to ensure

competence of the screening company.

During this provisional period the FAA

and the air carrier could provide more

monitoring of training, and more testing

and surveillance than would normally

be provided for established companies.

The screening company might also be

constrained from beginning screening

activities at a new screening location

unless advance approval is given by the

FAA. The provisional certificate could

be limited to a specific period, after

which a successful screening company

may apply for a standard screening

company certificate and be expected to

meet only those provisions required of

experienced screening companies.

The FAA requests comments as to

what measures or constraints, if any,

should be placed upon a new screening

company. If a provisional certificate

were to be issued, for what period of

time should it remian in effect? What

additional oversight requirements, if

any, should be placed upon an air

carrier contracting with a new screening

company?

In additon to substantive comments or

suggestions relating to this issue, the

FAA requests estimates of the costs of

provisional certification or other

possible constraints upon new screening

companies.

9. Checkpoint Operational

Configuration Deficiencies

The FAA has observed that

difficulties with the performance of

screening at checkpoints often are

caused by a less than optimal physical

configuration of the checkpoint. For

instance, a screener may have problems

reading the x-ray screen because there is

a glare on the screen. The FAA is

considering clarifying the responsibility

of the air carriers and the screening

companies to make sure that their

checkpoints are configured for effective

screening. In some cases an airport

operator would have an interest in the

correction of operational checkpoint

configuration deficiencies. The FAA

requests comments on how best to

address operational checkpoint

deficiencies.

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests estimates of the costs of

correcting operational checkpoint

deficiencies.

10. Foreign Air Carriers

The FAA anticipates that this rule

will also apply to foreign air carriers

required to screen under a security

program required by 14 CFR part 129.

The FAA requests comments on the

impact on foreign air carriers operating

in the United States.

In addition to substantive comments

or suggestions relating to this issue, the

FAA requests estimates of the costs of

imposing the same requirements on

foreign air carriers.

Issued in Washington, DC, on March 11,

1997.

Quinten T. Johnson,

Acting Director, Office of Civil Aviation

Security Policy and Planning.

[FR Doc. 97–6531 Filed 3–12–97; 8:45 am]

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