13262 Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 107 and 108

[Docket No. 28859; Notice No. 97–4]

RIN 2120–AG32

Employment History; Verification and

Criminal Records Check.

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking

(NPRM).

SUMMARY: The FAA proposes to amend

the regulations that require an access

investigation, including a fingerprintbased criminal history record check in

certain cases, for unescorted access

privileges to security areas at airports.

This proposal would extend the

requirement for an access investigation

(which would be renamed ‘‘employment

background investigation’’) to persons

who perform checkpoint screening

functions at airports and their

supervisors. The proposal also would

require airport operators and air carriers

to audit employment background

investigations. The FAA proposes these

changes in response to the Federal

Aviation Reauthorization Act of 1996

(Pub. L. 104–264). This proposed rule is

intended to improve the security of the

airport environment.

DATES: Comments must be received on

or before May 19, 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. 28859 Room 915G, 800

Independence Avenue, SW.,

Washington, DC 20591. Comments

submitted must be marked: ‘‘Docket No

28859.’’ Comments may also be sent

electronically to the following internet

address: 9–NPRM–CMTS@faa.dot.gov.

Comments may be examined in Room

915G on weekdays, except Federal

holidays, between 8:30 a.m. and 5:00

p.m.

FOR FURTHER INFORMATION CONTACT:

Linda Valencia, Office of Civil Aviation

Security Policy and Planning, Civil

Aviation Security Division, ACP–100,

Federal Aviation Administration, 800

Independence Avenue, SW.,

Washington, DC 20591, telephone(202)

267–3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of the

proposed rule 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

notice 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.

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.

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. The proposals

contained in this notice may be changed

in light of the comments received.

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. 28859.’’ The

postcard will be date stamped and

mailed to the commenter.

Availability of NPRMs

An electronic copy of this document

may be downloaded using a modem and

suitable communications software from

the FAA regulations section of the

Fedworld electronic bulletin board

service (telephone: 703–321–3339), 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/sul docs for

access to recently published rulemaking

documents.

Any person may obtain a copy of this

NPRM by submitting to request to the

Federal Aviation Administration, Office

of Rulemaking, ARM–1, 800

Independence Avenue, SW.,

Washington, DC 20591, or by calling

(202) 267–9680. Communications must

identify the notice number or docket

number of this NPRM.

Persons interested in being placed on

the mailing list for future NPRM’s

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.

History

The final rule on Unescorted Access

Privilege was published in the Federal

Register on October 3, 1995 [60 FR

51854], and was responsive to the

Aviation Security Improvement Act of

1990. The rule initiated the 10-year

employment background investigation

with the potential for a Federal Bureau

of Investigations (FBI) fingerprint-based

criminal history records check for those

individuals who are granted unescorted

access to a security identification

display area (SIDA) and those who may

authorize others to have unescorted

access. (See 14 CFR section 107.25.) In

that rulemaking, the FAA stated that it

would continue to evaluate the civil

aviation security system to determine if

further changes were warranted.

The bombings of the Federal Building

in Oklahoma City and the World Trade

Center Building in New York, along

with information provided by the U.S.

intelligence community since those

incidents occurred, indicate that

terrorists activities are no longer limited

to the ‘‘overseas’’ arena. Intelligence

information indicates that terrorist are

in the United States, working alone,

developing ad-hoc groups, or as

members of established terrorist groups.

The White House Commission on

Aviation Safety and Security identified

a further need to enhance the security

at our nation’s airports. In its final

report, it recommended that ‘‘Given the

risks associated with the potential

introduction of explosives into these

areas, * * * screeners and employees

with access to secure areas be subject to

criminal background checks and FBI

fingerprint checks.’’

In Section 304 of the Federal Aviation

Reauthorization Act of 1996, Public Law

104–264 (hereafter ‘‘the Act’’), the

Congress directed the FAA to expand

the use of both employment background

investigations and fingerprint-based

criminal history records checks. Section

304 of the Act directs the Administrator

to issue regulations requiring the

application of the employment

background investigation and, when

triggered by specific criteria, criminal

history record checks to individuals

who screen passengers and property

that will be carried in a cabin onboard

aircraft in air transportation or intrastate

air transportation and the supervisors of

those individuals. It also provides the

Administrator with the discretionary

authority to apply those procedures to

individuals who exercise security

functions associated with cargo and
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules 13263

baggage. In addition, Section 306 of the

Act directs the Administrator to provide

for the periodic audit of the

effectiveness of the criminal history

record checks. The FAA believes that

the measures mandated by Congress

will help ensure the integrity of the

airport environment.

General Discussion of the Proposal

General

Title 14 of the Code of Federal

Regulations (CFR) Part 107 prescribes

security requirements for airport

operators in the areas of access control,

law enforcement support, and the

submissions of airport security

programs for FAA approval. Title 14

CFR Part 108 prescribes security rules

for U.S. carriers. As applied to this

proposal, the term ‘‘air carrier’’ refers to

U.S. air carriers conducting passengercarrying operations.

This proposal would extend the

requirement for an access investigation

(which would be renamed ‘‘employment

background investigation’’) to persons

who perform checkpoint screening

functions at airports and their

supervisors. Consistent with the statute

and the current rule, it also proposes

that if any of four ‘‘triggers’’ is alerted,

the employment background

investigation would not be considered

complete unless the individual is

subject to a fingerprint-based criminal

history records check. The proposal

would not bar all individuals with a

criminal history from performing

checkpoint screening functions.

However, it would prohibit an

individual convicted of specific crimes

from performing the identified security

functions. All other qualifications and

training requirements remain in effect

for checkpoint security screeners and

their supervisors.

As noted above, section 306 of the Act

directs the FAA to provide for the

periodic audit of the effectiveness of the

criminal history records checks. The

FAA in its oversight capacity has

audited and will continue to audit these

checks. However, the FAA believes that

self-auditing is a valuable tool that

assists effective rule implementation.

Therefore, this proposal also would

require air carrier and airport operators

to audit their employment background

investigations. In this context, the FAA

uses the term audit to indicate the use

of random sampling to review and

evaluate the continuing compliance

with the regulatory requirements related

to employment background

investigations. The proposed language

addressing the audit is general in nature

because the specific details of the audit

process will be contained in security

program amendments of each regulated

party.

As noted before, section 304 of the

Act provides the Administrator with

discretionary authority to require

employment background investigations

for other individuals who exercise

security functions associated with

baggage or cargo. The proposed rule

does not include language to expand the

requirement for such investigations

beyond checkpoint screeners and their

supervisors. In large part this is because

most air carrier baggage and cargo

personnel currently have unescorted

access to the SIDA and thus already are

subject to the current background check

rule. The FAA has considered whether

to include in this proposal those who

perform security functions related to

cargo and baggage outside of the

security identification display area, and

the FAA requests comments on which,

if any, additional cargo or baggage

personnel should be included. Should

those who perform other security

functions at the cargo facilities of

indirect air carriers and all-cargo

carriers located at the airport be subject

to the rule? How far up the ‘‘cargo

handling process’’ should the

background employment investigations

apply? Should any cargo company on

airport property or just those companies

adjacent to the air operations area be

included? Should a rule include cargo

facilities not at the airport? Should

office workers be included?

Commenters also should include cost

estimates for the recommendations in

their comments. The final rule may

expand the scope of application based

on the comments received.

Further, the FAA is proposing several

other minor changes to the rule. The

first is applicable to air carriers and

clarifies the obligation of the air carriers

to do employment background

investigations on persons who receive

air carrier issued media that are

accepted by one or more airports for

unescorted access within a SIDA.

Second, the proposed rule would

require that a completed employment

background investigation file

accompany the certification made by the

airport tenant to the airport operator

under section 107.31(n)(2). Third, the

proposed rule spells out in more detail

the requirements for the maintenance

and control of employment background

investigation files.

Readers familiar with the current

sections 107.31 and 108.33 language

will note a change in the arrangements

of the paragraphs in addition to the

proposed language. The sequence of

some paragraphs and the addition of

descriptive paragraph headings are

proposed for clarification.

Section-by-section analysis

Sections 108.33(a) and 107.31(a),

Applicability

The FAA is proposing to clarify the

applicability of the rule to individuals

who hold only air carrier issued media

that permits unescorted access within a

SIDA. Proposed section 108.33(a)(2)

would require that an employment

background investigation be completed

for each individual who is issued an air

carrier identification that authorizes

such unescorted access, typically flight

crews. The proposed change addresses a

situation not anticipated at the time the

rule was originally issued. It has come

to the attention of the FAA that not

every flight crewmember is being issued

an airport access media at their ‘‘home

base,’’ which would have required a

certification be made indicating that an

employment background investigation

had been completed.

Additionally, the FAA is also

proposing to expand the applicability of

the employment background

investigation in § 108.33 to require that

individuals performing screening

functions associated with persons and

property entering the cabin of an aircraft

be subjected to the same investigative

requirements for their employment

history investigation. The employment

background investigation requirement

also would apply to those individuals

holding the two immediate supervisory

positions above the screeners. These

positions are commonly known as

checkpoint security supervisors (CSS’s)

and shift or site supervisors. These

generally are the only supervisors at the

airport who have direct control over the

screening process. Under proposed

paragraph (a)(3), the employment

background investigation requirement

would apply beginning on the effective

date to all persons hired to perform the

identified function. Under paragraph

(a)(4), all screeners and supervisors

hired before the effective date would

have to have an employment

background investigation completed by

1 year after the effective date.

Sections 108.33(b) and 107.31(b),

Employment History Investigation

Required

These paragraphs describe the current

10-year employment background

requirement, which includes the

verification of the most recent 5 years of

employment.
13264 Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules

Sections 108.33(c) and 107.31(c),

Investigative Steps

These paragraphs specify the steps

which must be followed to complete an

employment background investigation.

The responsibility remains with the

regulated party to determine when a

fingerprint-based criminal history

record check has been triggered. Should

the regulated party make a

determination to no longer consider the

individual for a position that requires a

completed employment background

investigation, a criminal history record

check would not be required. When a

criminal record is returned to the

regulated party, that party must make a

comparison of the record to the list of

disqualifying crimes. A conviction of

any of the listed crimes, in any

jurisdiction, is disqualifying.

An editorial change is proposed to the

list of ‘‘triggers’’ that determine when an

individual will be fingerprinted. This

proposal reflects the four criteria as they

are listed in the Act. There are no

additions to the current criteria; only

the format is changed.

Sections 108.33(d) and 107.31(d),

Individual Notification

A minor change is proposed that

would require the regulated party to

identify a point of contact when it

notifies the affected individual that a

criminal history record check will be

conducted.

Sections 108.33(e) and 107.31(e),

Fingerprint Processing

These paragraphs essentially match

the current regulation with a few points

of clarification added. One clarification

is proposed because some airport

operators and air carriers are now

submitting fingerprint cards obtained

through local police departments and

not cards which have been provided by

the FAA. The current regulation states

that an approved FBI fingerprint card

may be used. Although many cards are

approved by the FBI, only those cards

issued by the FAA are intended to be

utilized for this program. This

clarification is in keeping with the

agreement made between the FAA and

the FBI regarding the processing of the

fingerprint cards, and will facilitate the

entire process.

Questions have been raised about

whether individuals being fingerprinted

may be allowed to submit their own

cards with money orders to the FAA.

Paragraph (e)(2) clarifies that

individuals may not handle or possess

the fingerprint card on which their

prints have been taken.

The last point of clarification

addresses the cost of processing

fingerprints, which have increased from

the time the Final Rule was issued in

October 1995. The difference between

the total current processing cost of

$28.00, and the fee found in the current

regulations, $24.00, is being paid by the

FAA. Upon the effective date of a final

rule, the entire cost of processing the

fingerprint cards will be assessed to

both airport operators and air carriers.

In anticipation of future changes in the

cost of processing, the FAA proposes

that the applicable fee will be provided

through the local FAA security offices to

air carriers and airport operators.

A point worth reiterating here is that

if the first, or subsequent, set of

fingerprints is not classifiable, another

set of prints must be submitted. The

employment background investigation

is not considered complete until the

regulated party either receives and

follows upon the information contained

in the criminal history record or has

received a ‘‘no record’’ transmittal.

Sections 108.33(f) and 107.31(f),

Determination of Arrest Status

No changes have been made.

Sections 108.33(g) and 107.31(g),

Availability and Correction of FBI

Records and Notification of

Disqualification

These paragraphs contain some of the

elements in current sections 108.33(g)

and 107.31(k), respectively. The

proposal consolidates the regulated

parties’ responsibilities regarding

notification based on an individual’s

criminal record. No substantive changes

have been made.

Sections 108.33(h) and 107.31(h),

Corrective Action by Individuals

These paragraphs set out in the

process by which an individual may

challenge information that they believe

to be incorrectly contained in their

criminal history record. Some of the

information was previously contained

in sections 108.33(g) and 107.31(g). No

substantive changes have been made.

Sections 108.33(i) and 107.31(i), Limits

on Dissemination of Results

No changes have been made.

Sections 108.33(j) and 107.31(j),

Employment Status

These new paragraphs clarify the

status of those persons awaiting the

results of their fingerprint card

submissions. They restate the current

requirement to escort those who are

seeking, but have not cleared for,

unescorted SIDA access. Section

108.33(j) proposes that those

individuals applying for screening

functions and for screening supervisory

positions may not make independent

judgments until their employment

background investigation is completed.

Sections 108.33(k) and 107.31(k),

Recordkeeping

The proposal clarifies the intent of the

responsibilities of the regulated parties

under the current unescorted access

rule. This proposal reinforces the

responsibilities related to the

maintenance and control of the entire

employment background investigative

file. Special emphasis has been placed,

due to previous confusion, on the

handling and destruction of the criminal

history records. A discussion of the

rules governing who may access,

maintain, and destroy the FBI criminal

record was included in the preamble to

the unescorted access final rule. The FBI

has advised the FAA of its strict

interpretation of the responsibilities and

obligations regarding the handling and

destruction of the criminal history

records provided to regulated parties.

As a result, the FAA is proposing that

only direct employees of airport

operators or air carriers may carry out

responsibilities related to the request,

receipt, review, maintenance, and

destruction of the information contained

within the criminal history record, as

well as the criminal history record itself.

Contract employees are not considered

direct employees. This proposal is

consistent with current FBI

requirements in 28 CFR 20.33.

Sections 108.33(l) and 107.31(l),

Continuing Responsibilities

Under these paragraphs those

individuals who are granted unescorted

SIDA access and those who have been

given the responsibility to perform the

listed screening functions or

supervisory duties would be obligated

to report themselves to their employer

should they subsequently be convicted

of any disqualifying crime. The FAA

also proposes that the tenant employer

or contractor employer must report to

the airport operator or the air carrier, as

appropriate, either while the

employment investigation is ongoing or

afterwards, that an individual may have

a possible conviction of a disqualifying

crime. Should this information be

obtained after the individual has been

cleared for unescorted access or to

perform screening or supervisory

functions in §§ 107.31(a) or 108.33(a),

the tenant or contractor employer would

be required to report it. The FAA

proposes that once this information

becomes available to airport or the air

carrier, the regulated party would have

to determine the status of the conviction
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules 13265

and take appropriate action if the

conviction is confirmed.

Section 108.33(m), Air Carrier

Responsibilities

This proposal clarifies air carrier’s

responsibility regarding the location of

employment background investigation

files that may not have been adequately

addressed in the unescorted access

privilege rule. It was the intent of the

FAA under that rule to have the

employment background investigation

files available for inspection by the FAA

at the airport where the air carrier has

made a certification to the airport

operator under § 107.31 for the issuance

of airport media. Paragraph (m)(1) of the

proposal would make this an explicit

obligation and require the air carrier to

designate an individual at each airport

to control and maintain the files.

Under paragraph (m)(2) of the

proposed rule, the air carrier also would

be required to designate an individual to

oversee the control of the employment

background investigation files of

individuals covered by section

108.33(a)(2), (3), or (4). This would

include screeners and their supervisors,

as well as individuals issued air carrier

identification media, for whom no

certification was made to an airport

operator under section 107.31(n).

Paragraph (m)(3) would add a

requirement for the air carrier to audit

the accuracy and completeness of the

employment background investigations

being conducted on both its employees

and contractor employees. The depth of

this audit should be specific enough to

provide the regulated party with

information regarding the level of

thoroughness being applied to the

investigations. This review should be

completed with enough sufficiency to

allow the regulated parties to make

determinations on any needed

improvements required to maintain

compliance with the regulation. This

proposed audit may serve as a

management tool for the regulated party;

however, it does not relieve the party of

the responsibility to review each

employment background investigation

for compliance with the regulation, to

include reviewing determinations made

to initiate a criminal history records

check and requisite resolutions. The

details of the audit will be further

defined in the regulated party’s security

program. Regulated parties may

anticipate that the FAA will develop

minimum audit standards to be applied

to air carriers and airport operators as

part of their security programs.

Section 107.31(m), Exception

Based on information the FAA has

obtained regarding the processing of

U.S. Customs Service (USCS)

background investigations, it has been

determined that the exception provided

for in the current 107.31(e)(4) should no

longer be recognized. It has been

determined that current USCS

background investigations no longer

meet the requirements of the FAA

employment background investigation.

Therefore, the FAA proposes to remove

this exception.

Section 107.31(n), Investigations by Air

Carrier and Tenants

The FAA proposes that when the

airport operator chooses to accept a

certification from a tenant under section

107.31(n)(2), to include foreign air

carriers, the operator must also collect

and maintain the entire employment

background investigation file upon

which the certification is based. This

will help ensure that the investigations

are properly completed and assist the

airport operator in documenting the

information needed for an effective

oversight and audit process.

Section 107.31(o), Airport Operator

Responsibility

It remains the airport operator’s

responsibility to designate the airport

security coordinator (ASC) responsible

for reviewing and controlling the results

of the employment background

investigations, which will now include

employment background investigation

files submitted with tenant

certifications. If criminal history records

are requested, the ASC will continue to

serve as the contact to receive

notification, if necessary, from

individuals of their intent to correct

their criminal history record. A new

paragraph 107.31(o)(3) proposes to

require the airport operator to audit the

accuracy and completeness of the

background investigations being

conducted on its employees and tenant

employees. The details of the audit

process will be included under the

security program, similar to the

proposal for air carriers under section

108.33(m).

Economic Summary

The FAA has determined that this

proposed rule is not a ‘‘significant

rulemaking action,’’ as defined by

Executive Order 12866 (Regulatory

Planning and Review). The anticipated

costs and benefits associated with this

proposed rule are summarized below.

(A detailed discussion of costs and

benefits is contained in the full

evaluation in the docket for this

proposed rule.)

In 1995, the FAA issued a final rule

to perform a 10-year employment

review, with a potential for the conduct

of a criminal history records check, of

all individuals with unescorted access

to the SIDA. This check was instituted

as a measure to ensure that all

individuals with such unescorted access

privileges could account for all their

time in the previous 10 years and that

they had not been convicted of

enumerated criminal offenses during

that time. Specific standards, if met,

would require the performance of a

criminal background check in order for

the individual to be further considered

for unescorted access to the SIDA.

Convictions for certain crimes could

provide an indication of an individual’s

predisposition for criminal or terrorist

acts; such individuals could pose

threats to aviation security.

Certain key individuals are not

covered under the current rule, and

these include screening personnel. In

the wake of an increased terrorism

threat to Americans in general and

American aviation in particular, the

U.S. Congress authorized and mandated

that the FAA extend these employment

background checks to a new set of

aviation employees. These include

persons responsible for the screening of

passengers and property and their

supervisors. This Notice of Proposed

Rulemaking (NPRM) proposes to

implement this specific portion of the

legislation.

In order to avoid duplication of

employment background checks by

entities involved at the airports, the

FAA originally granted exceptions to

the requirements for a 10-year

employment review. One such

exception was to allow the airport

operators to accept the U.S. Customs

Service (USCS) seal or hologram which

was granted to an individual after a

USCS background check is conducted. It

has been determined that USCS

background checks do not meet the

requirements of FAA regulations. The

FAA is proposing this exception no

longer be recognized.

The Office of Civil Aviation Security

Operations conducted an audit of

employment background checks

required to be maintained by airport

operators and air carriers. The FAA is

proposing that airport operators and air

carriers audit employment background

investigations that are conducted in

compliance with the regulations to

ensure that they are in compliance.
13266 Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules

Cost of Compliance

The FAA has performed an analysis of

the expected costs and benefits of this

regulatory proposal. In this analysis, the

FAA estimated costs for a 10-year

period, from 1997 through 2006. As

required by the Office of Management

and Budget (OMB), the present value of

this stream, was calculated using a

discount factor of 7 percent. All costs in

this analysis are in 1995 dollars.

There are currently 18,000 screeners

and screener supervisors filling 12,000

full time equivalent (FTE) positions.

Industry estimates break this down into

16,818 screeners filling 10,818

positions, 1,082 full time checkpoint

security supervisors (CSS’s), and 100

full time shift supervisors. The analysis

assumes loaded hourly wages of $5.70

for screeners, $6.75 for CSS’s, and

$11.00 for shift supervisors. Industry

sources report, on average, annual

turnovers of 115% for all screeners,

90% for CSS’s, and 20% for shift

supervisors. This turnover rate, of

course, will vary by airport and

location. Given the difficulty of

discerning the actual turnover rates at

individual airports, the FAA has opted

to perform this analysis using a macro

approach and will use these turnover

rates for the entire industry. In addition,

this analysis assumes that the number of

screeners will grow at an annual rate of

1.5%.

There are three cost components that

need to be considered when an

employee’s application triggers the

necessity of a criminal history records

check. These involve the fee for

processing fingerprints; the time for a

paperwork/clerk specialist to take the

fingerprints, do the requisite paperwork,

and mail the forms; and the need for

this employee to be supervised.

Currently, a fingerprint check takes,

on average, 54 days to be processed.

During this time period, this particular

employee, if hired, would need to be

supervised. This employee’s

productivity would be low for he or she

would not be able to exercise any

independent judgment; all screened

baggage would also need to be checked

by this employee’s supervisor, and this

employee would not be able to do tasks

such as using the metal detector or hand

wand, or perform a physical search. On

the other hand, at times, this employee

might be doing tasks that do not need

100% attention from a supervisor, such

as placing bags on the belt. Accordingly,

the FAA will use a 15% productivity

rate in this analysis, but calls for

comment.

The alternative would be not to hire

the employee until the results of the

fingerprint check come back. Given the

high turnover rate of screeners, there is

a good likelihood at many airports that

this person could then be hired based

on another job opening.

The FAA examined the cost of both of

these alternatives. The lower cost

alternative would be not to hire this

person until the fingerprint check

results return; in such a situation, the

only costs would be the costs of

fingerprinting the employee. The higher

cost alternative would be to hire this

person and pay them even though their

productivity would be low. Screeners

would be supervised by another

screener, at a total cost of about $1,850.

CSS’s would be supervised by another

CSS, at a total cost of about $2,180.

The current processing fee for a

fingerprint investigation is $28; the FAA

has been paying the difference between

that and the current published fee of

$24. Under the proposal, the cost of

fingerprinting would remain the same;

there would be no additional costs to

society from these changes. Employers

and/or employees would pay the entire

cost (with employees proscribed from

handling the fingerprint cards), while

the FAA would no longer pay the $4

difference. Hence these incremental

changes cancel each other out.

The FAA collected data on the results

of the first eight months of the current

rule. Of the applications that were

processed 0.4% of applicants needed to

be fingerprinted and because a

negligible amount had a prior criminal

conviction which disqualified them,

this analysis will use 0%. In the absence

of other information, the FAA will use

these percentages in estimating the costs

of this proposed rule. Due to both the

growth rate in screeners and the annual

turnover rates, the FAA estimates that

the 10-year costs would range from

$41,000 (net present value, $29,000) to

$1.31 million (net present value,

$916,000) with the latter including the

cost of supervision.

The FAA anticipates that there would

be cost in removing the USCS

exemption in the current § 107.31, but

does not have the information necessary

to calculate it, so calls for comment on

the number of airport employees who

currently were granted unescorted

access due to a background check from

the USCS. Domestic airports that have a

USCS operations present have the

option, for specific employees, of

granting SIDA access by conducting the

employment background checks itself or

they may accept the USCS’ background

check. Using the latter option would

cost the airport nothing while using the

former would have the potential for

significant cost.

The FAA believes that at some of the

larger airports, there may be several

hundred employees that would be

affected by the proposed rule change;

given future employee growth and

replacement, the costs would not be

negligible. However, there is no

definitive source as to how many such

employees exist. It is important to note

that no employee who received

unescorted access based on an

employment check from USCS would

have to undergo a new check.

This proposal would add a new

requirement that would require the

airport operators and air carriers to

review the employment background

documentation of their own employees

as well as any appropriate contractors

or, in the case of airports, tenants.

Reviewing the results of employment

background investigations would be a

new requirement for both airports and

air carriers. They would need to develop

and carry out processes by which they

would examine the accuracy and

completeness of the employment

background investigations being

accomplished on all of its employees.

The actual percentage to be audited

may vary by airport and air carrier and

would be included in each individual

security program. This analysis will

estimate costs on the assumption that,

on average, 5 percent of all employment

background investigations would be

checked. The average check would

involve a paperwork/clerk specialist

going through the employee’s

application and checking to make sure

that all items were accurate. The FAA

estimates that the average investigation

would cost approximately $55.

Based on the number of employees at

airports with unescorted access

privileges, specific employee growth

rates, and annual attrition rates, the

FAA calculates 10 year costs for the

airports to be $3.50 million (net present

value, $2.41 million). Meanwhile, the

air carriers would need to run checks on

the screeners and screener supervisors

that are hired during this time period.

The 10-year costs for the airports sum to

$618,500 (net present value, $430,800).

The 10-year cost of this proposed rule

would range from $4.16 million (net

present value, $2.87 million) to $5.44

million (net present value, $3.76

million).

Analysis of Benefits

The proposed rule to amend parts 107

and 108 is intended to enhance aviation

safety. The primary benefit of the

proposed rule would be to strengthen

airport and air carrier security. Aviation

security is achieved through an intricate

set of interdependent requirements. It
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules 13267

would be difficult to separate out any

current existing requirement or any

proposed change and identify to what

extent that requirement or that change,

alone, would prevent a criminal or

terrorist act in the future. Certainly, it

would be difficult to show that this

proposal, alone, would be solely

responsible for preventing future such

incidents.

President Clinton, in July 1996,

declared that the threat of both foreign

and domestic terrorism to aviation is a

national threat. The U.S. Congress

recognized this threat in the Act by: (1)

Authorizing money for the purchase of

specific anti-terrorist equipment, and

the hiring of extra security personnel;

and (2) requiring the FAA to promulgate

additional security-related regulations.

This proposal seeks to establish one of

these security-related regulations.

Since the mid-1980’s, the major goals

of aviation security have been to prevent

bombing and sabotage incidents.

Preventing an explosive or incendiary

device from getting on board an airplane

is one of the major lines of defense

against an aviation-related criminal or

terrorist act. The individuals covered by

this proposed rule play a major role in

preventing such occurrences. Requiring

an employment background check, and

as needed the subsequent criminal

history record check of a person covered

under this proposed rule, could reveal

information which could point out a

susceptibility of the individual to be

involved or to become involved in

criminal or terrorist activity. Such

individuals could definitely be a threat

to aviation security.

The most deadly and expensive

example of the type of explosion that

aviation security is trying to prevent is

the Pan Am 103 tragedy over Lockerbie,

Scotland. A conservative estimate of the

costs associated with this catastrophe

yields $1.4 billion. While the specific

proposals in this proposed regulation

may not, by themselves, have prevented

this tragedy, this cost underscores the

consequences of not taking prudent

security-related steps.

Some benefits can be quanti—

prevention of fatalities and injuries and

the loss of aircraft and other property.

Other benefits are no less important, but

are probably impossible to quantify—

the perception of improved security on

the part of the traveling public, and

general gains for the U.S. attributable to

the commitment to enhance aviation

security.

Comparison of Costs and Benefits

The 10-year cost of this proposed rule

would range from $4.16 million (net

present value, $2.87 million) to $5.44

million (net present value, $3.76

million). This cost needs to be

compared to the possible tragedy that

could occur if a bomb or some other

incendiary device were to get onto an

airplane and cause an explosion. Recent

history not only points to Pan Am 103’s

explosion over Lockerbie, Scotland, but

also the potential of up to twelve

American airplanes being blown up in

Asia in early 1995. While the specific

proposals in this proposed regulation

may not, by themselves, have been

factors in the occurrence of Pan Am 103

or the prevention of the culmination of

the conspiracy in Asia, these potential

devastating costs emphasize the

consequences of not taking sensible

security-related steps.

Congress has mandated that the FAA

promulgate these proposed regulations.

Congress, which reflects the will of the

American public, has determined that

this proposed regulation is in the best

interest of the nation. Because this

proposed regulation reflects the will of

the American people, and because its

cost is low compared to the potential

catastrophe of a single bomb explosion

on an airplane, the FAA finds this

propose rule cost-beneficial.

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.’’

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 operators of aircraft for hire, a small

operator is not that owns, but not

necessarily operates, nine or fewer

aircraft. The FAA’s criteria for

‘‘significant impact’’ are $4,900 or more

per year for an unscheduled operator,

$124,000 or more per year for a

scheduled operator whose entire fleet is

made up of airplanes with over 60 seats,

and $69,000 or more per year for other

scheduled carriers.

Meanwhile, a small airport is one

owned by a country, city, town or other

jurisdiction having a population of

49,999 or less. If two or more towns,

cities, or counties operate an airport

jointly, the population size of each is

totaled to determine whether that

airport is categorized as a small entity.

The threshold annualized cost level of

$8,000.

Only scheduled carriers and public

charters are required to conduct

screening. The total cost for a screener

or a CSS whose application triggers a

background check, and who is hired for

the 54 day investigatory process, would

be $1,758.86 and $2,082.86,

respectively. An investigation would

cost $55.28, so the highest possible

annual cost for a screener would be

$1,862.24 and for a CSS would be

$2,186.24. A scheduled air carrier

would need to have either 38 new

screeners or 32 new CSS’s in a single

year, needing a background check, to

exceed $69,000. The analysis that no

more than 91 screeners would need an

employment background check in any

given year. It is extremely unlikely that

one individual air carrier would decide

to hire, through screening companies,

42% of those screeners, especially given

the low productivity of these employees

for this time period.

Meanwhile, because almost all CSS’s

move up through the ranks rather than

being hired from the outside, they

would have already been subject to the

requisite investigations, if they were

necessary. Based on projected annual

growth and turnover rates as well as

assumed percentage of employees

needing fingerprint checks, this analysis

assumes that no CSS would be subject

to an employment background check.

Hence, no scheduled air carrier would

have these costs exceed $69,000.

The only small entity airports that

would have unescorted access privileges

would have less than 2 million person

screenings per year. At such airports, an

average of 554 employees have such

access. Hence, in any given year, no

more than 28 employees would have

their applications checked. At $55.28

per investigation, the airport operators

costs would equal $1,548, which is less

than the threshold cost.

Accordingly, the annual costs

expected to be imposed on small

operators would not exceed the

thresholds for significant impact

outlined above. Therefore, the FAA

finds that this proposed rule would not

have a significant economic impact on

a substantial number of small entities.

International Trade Impact Statement

In accordance with the Office of

Management and Budget memorandum

dated March 1983, federal agencies

engaged in rulemaking activities are

required to assess the effects of

regulatory changes on international

trade. Since both domestic and

international air carriers use screeners,

this proposed rule change would have

an equal effect on both. Unlike domestic

air carriers that compete with foreign air

carriers, domestic airports are not in

competition with foreign airports. For
13268 Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules

this reason, a trade impact assessment

would not be applicable for domestic

airports.

Unfunded Mandate

Title II of the Unfunded Mandates

Reform Act of 1995 (the Reform Act),

enacted as Public Law 104–4 on March

22, 1995, requires each Federal agency,

to the extent permitted by law, to

prepare a written assessment of the

effects of any Federal mandate in a

proposed or final agency rule that may

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more (adjusted annually for inflation)

in any one year. Section 204(a) of the

Reform 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

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

supplements section 204(a), provides

that before establishing any regulatory

requirements that might significantly or

uniquely affect small governments, the

agency shall have developed a plan that

among other things, provides for notice

to potentially affected small

governments, if any, and for a

meaningful and timely opportunity to

provide input in the development of

regulatory proposals.

This proposed rule does not contain

any significant Federal

intergovernmental or private sector

mandate. Therefore, the requirements of

Title II of the Reform Act do not apply.

Federalism Implications

The regulations proposed herein do

not have a substantial direct effect on

the States, on the relationship between

the national government and the States,

or on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this proposed rule

does not have federalism implications

warranting the preparation of a

Federalism Assessment.

International Civil Aviation

Organization (ICAO) 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. The FAA

finds no corresponding International

Civil Aviation Organization regulations

or Joint Aviation Regulations; therefore,

no differences exist.

Paperwork Reduction Act

In accordance with the Paperwork

Reduction Act of 1955, 44 U.S.C. 3501

et seq., the information collection

requirements associated with this rule

are being submitted to the Office of

Management and Budget for review.

The unescorted access privilege

requirements for Parts 107 and 108 have

been previously assigned Office of

Management and Budget (OMB) Control

No. 2120–0564. This NPRM, although it

has a different title, applies the same

recordkeeping requirements for

unescorted access to a different

population, as required under the

Federal Aviation Reauthorization Act of

1996. The additional population

affected are those individuals, and their

supervisors, who perform screening

functions related to the persons and

property which are carried aboard the

cabin of an aircraft engaged in air

transportation. The statute also provides

for background checks on those who

perform cargo and baggage security

related functions, as the Administrator

determines is necessary. Comments are

requested from the public. Based on

those comments, persons or positions

may be specifically designated, and may

be included in the final rule.

The employment background

information is collected from those who

apply for positions listed in the

previous paragraph. The information is

collected by either the airport operator

or the air carrier who is seeking to

employ persons to perform those

functions at any U.S. airport operating

under Part 107. The purpose of the

employment review is to determine if

any one of four standards is met; if so,

an FBI criminal history records check

must be performed if the person is to be

further considered for performing the

listed functions. Lacking evidence that

such a review was completed, either the

airport operator or the air carrier,

whomever is the regulated party, may be

subject to a violation which could carry

a civil penalty. An addition which will

be covered under this NPRM is that the

airport operators and air carriers

conduct a periodic audit on the

completed employment background

applications. The process implemented

by each regulated party will be

described and added to their respective

security programs. The time needed to

update the security programs with this

information is estimated to take 2 hours.

Further it is estimated that this addition

to the security program will only occur

once. The total estimated burden is

based on 2 hours times 574 (443 airports

+ 131 air carriers), for a total of 1,148

hours.

The FAA considers comments by the

public on the proposed collection of

information in order to evaluate the

accuracy of the estimate of the burden

of the proposed collection of

information, the quality, utility and

clarify of the information to be

collected, and possible ways to

minimize the burden of the collection.

In submitting comments to OMB,

commenters should keep in mind that

OMB is required to make a decision

concerning the collection of information

contained in the proposed regulations

between 30 and 60 days after

publication of this document in the

Federal Register.

Comments on the proposed

information collection requirements

should be submitted to: Office of

Management and Budget, Washington,

DC 20503, Attention: Desk Officer for

the Federal Aviation Administration,

U.S. Department of Transportation. It is

requested that comments sent to OMB

also be sent to the FAA at the address

listed in the comments section.

Conclusion

The FAA has determined that this

proposed regulation is not a significant

rule under Executive Order 12866; and

is not a significant proposed rule under

Department of Transportation

Regulation Policies and Procedures (44

FR 11034; February 26, 1979). Also, for

the reasons stated under the headings

‘‘Trade Impact Statement’’ and

‘‘Regulatory Flexibility Determination,’’

the FAA certifies that the NPRM will

not have a significant economic impact

on small entities. A copy of the full

regulatory evaluation is filed in the

docket and may also be obtained by

contacting the person listed FOR

FURTHER INFORMATION CONTACT.

List of Subjects in 14 CFR Parts 107 and

108

Air carriers, Air transportation,

Airlines, Airplane operator security,

Aviation safety, Reporting and record

keeping requirements; Security

measures, Transportation, Weapons.

The Proposed Amendments

For the reasons set forth in the

preamble, it is proposed to amend 14

CFR Chapter I as follows:
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules 13269

PART 107—AIRPORT SECURITY

1. The authority citation for Part 107

is revised to read as follows:

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

40119, 44701–44702, 44706, 44901–44905,

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

46105; Sec. 306, Pub. L. 104–264, 110 Stat.

3213, 49 U.S.C. 44936.

2. Section 107.31 is revised to read as

follows:

§ 107.31 Employment history, verification

and criminal history records checks.

(a) Applicability. On or after January

31, 1996, this section applies to all

individuals seeking authorization for, or

seeking the authority to authorize others

to have, unescorted access privileges to

the security display area (SIDA) that is

identified in § 107.25 of this part.

(b) Employment background

investigations required. Except as

provided in paragraph (m) of this

section, each airport operator shall

ensure that no individual is granted

authorization for, or is granted authority

to authorize others to have, unescorted

access to the SIDA unless the following

requirements are met:

(1) The individual has satisfactorily

undergone a review covering the past 10

years of employment history and

verification of the 5 years preceding the

date the employment background

investigation is initiated as provided in

paragraph (c) of this section; and

(2) The results of the employment

background investigation do not

disclose that the individual has been

convicted or found not guilty by reason

of insanity, in any jurisdiction, during

the 10 years ending on the date of such

investigation, of a crime involving any

of the following crimes enumerated in

paragraphs (b)(2) (i) through (xxv) of

this section. Where specific citations are

listed, both the current citation and the

citation that applied before the statute

was recodified in 1994 are listed.

(i) Forgery of certificates, false

marking of aircraft, and other aircraft

registration violation, 49 U.S.C. 46306

[formerly 49 U.S.C. App. 1472(b)];

(ii) Interference with air navigation,

49 U.S.C. 46308 [formerly 49 U.S.C.

App. 1472(c)];

(iii) Improper transportation of a

hazardous material, 49 U.S.C. 46312

[formerly 49 U.S.C. App. 1472(b)(2)];

(iv) Aircraft piracy, 49 U.S.C. 46502

[formerly 49 U.S.C. App. 1472(i);

(v) Interference with flight crew

members or flight attendants, 49 U.S.C.

46504 [formerly 49 U.S.C. App. 1472(j)];

(vi) Commission of certain crimes

aboard aircraft in flight, 49 U.S.C. 46506

[formerly 49 U.S.C. App. 1472(k)];

(vii) Carrying a weapon or explosive

aboard aircraft, 49 U.S.C. 46505

[formerly 49 U.S.C. App. 1472(l)];

(viii) Conveying false information and

threats, 49 U.S.C. 46507 [formerly 49

U.S.C. App. 1472(m)];

(ix) Aircraft piracy outside the special

aircraft jurisdiction of the United States,

49 U.S.C. 46502(b) [formerly 49 U.S.C.

App. 1472(n)];

(x) Lighting violations involving

transporting controlled substances, 49

U.S.C. 46315 [formerly 49 U.S.C. App.

1472(q)];

(xi) Unlawful entry into an aircraft or

airport area that serves air carriers or

foreign air carriers contrary to

established security requirements, 49

U.S.C. 46314 [formerly 49 U.S.C. App.

1472(r)];

(xii) Destruction of an aircraft or

aircraft facility, 18 U.S.C. 32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

(xx) Unlawful possession, use, sale,

distribution, or manufacture of an

explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

(xxiii) Distribution of, or intent to

distribute, a controlled substance;

(xxiv) Felony arson; or

(xxv) Conspiracy or attempt to

commit any of the aforementioned

criminal acts.

(c) Investigative steps. The

employment background investigation

shall consist of the following steps:

(1) The individual shall provide the

following on an application form:

(i) The individual’s full name,

including any aliases or nicknames.

(ii) The dates, names, phone numbers,

and addresses of previous employers,

with explanations for any gaps in

employment of more than 12

consecutive months, during the

previous 10-year period.

(iii) Any convictions during the

previous 10-year period of the crimes

listed in paragraph (b)(2) of this section.

(2) The airport operator shall include

on the application form a notification

that the individual will be subject to an

employment history verification and

possibly a criminal history records

check.

(3) The airport operator shall verify

the identify of the individual through

the presentation of two forms of

identification, one of which must bear

the individual’s photograph.

(4) The airport operator shall verify

the information on the most recent 5

years of employment history required

under paragraph (c)(1)(ii) of this section.

Information shall be verified in writing,

by documentation, by telephone, or in

person.

(5) If one or more of the following

conditions exists, the employment

background investigation shall not be

considered complete unless it includes

a check of the individual’s fingerprintbased criminal history record

maintained by the Federal Bureau of

Investigation (FBI). The airport operator

may request a check of the individual’s

fingerprint-based criminal history

record only if one of more of the

following conditions exists:

(i) The individual does not

satisfactorily account for a period of

unemployment of 12 consecutive

months or more during the previous 10-

year period.

(ii) The individual is unable to

support statements made on the

application form.

(iii) There are significant

inconsistencies in the information

provided on the application.

(iv) Information becomes available to

the airport operator or the tenant

employer during the investigation

indicating a possible conviction for one

of the crimes listed in (b)(2).

(d) Individual notification. Prior to

commencing the criminal history

records check, the airport operator shall

notify the affected individual and

identify the Airport Security

Coordinator as the point of contact for

follow-up.

(e) Fingerprint processing. The airport

operator shall collect and process

fingerprints in the following manner:

(1) One set of legible and classifiable

fingerprints shall be recorded on

fingerprint cards approved by the FBI,

and distributed by the FAA for this

purpose.

(2) The fingerprints shall be obtained

from the individual under direct

observation by the airport operator or a

law enforcement officer. Individuals

submitting their fingerprints shall not

take possession of their fingerprint card

after they have been fingerprinted.

(3) The identity of the individual shall

be verified at the time fingerprints are

obtained. The individual shall present

two forms of identification, one of

which must bear the individual’s

photograph.

(4) The fingerprint card shall be

forwarded to Federal Aviation

Administration, 800 Independence Ave,

S.W., Washington, D.C. 20591 (ATTN:

ACO–300, Fingerprint Processing).

(5) Fees for the processing of the

criminal checks are due upon

application. Airport operators shall
13270 Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules

submit payment through corporate

check, cashier’s check, or money order

made payable to ‘‘U.S. FAA,’’ at the

prevailing rate for each fingerprint card.

Combined payment for multiple

applications is acceptable. The

prevailing rate for processing the

fingerprint cards is available from the

local FAA security office.

(f) Determination of arrest status. In

conducting the criminal history records

check required by this section, the

airport operator shall investigate arrest

information for the crimes listed in

paragraph (b)(2) of this section for

which no disposition has been recorded

to make a determination on the outcome

of the arrest.

(g) Availability and correction of FBI

records and notification of

disqualification.

(1) At the time the fingerprints are

taken, the airport operator shall notify

the individual that a copy of the

criminal history record received from

the FBI will be made available if

requested in writing. When requested in

writing, the airport operator shall make

available to the individual a copy of any

criminal record received from the FBI.

(2) Prior to making a final

determination to deny authorization to

individuals described in paragraph (a)

of this section, the airport operator shall

advise individuals that the FBI criminal

history record discloses information that

would disqualify them from positions

covered under this rule and provide

each individual with a copy of their FBI

record if it has been requested.

(3) The airport operator shall notify an

individual that a final determination has

been made to grant or deny authority for

unescorted access.

(h) Corrective action by individuals.

Individuals may contact the local

jurisdiction responsible for the

information and the FBI to complete or

correct the information contained in

their record before any final

determination is made, subject to the

following conditions:

(1) Within 30 days after being advised

that the criminal history record received

from the FBI discloses disqualifying

information, individuals must notify the

airport operator, in writing, of their

intent to correct any information

believed to be inaccurate.

(2) Upon notification by an individual

that the record has been corrected, the

airport operator must obtain a copy of

the revised FBI record prior to making

a final determination.

(3) If no notification is received

within 30 days, the airport operator may

make a final determination.

(i) Limits on dissemination of results.

Criminal history record information

provided by the FBI shall be used solely

for the purposes of this section, and no

person shall disseminate the results of

a criminal history records check to

anyone other than:

(1) The individual to whom the record

pertains or that individual’s authorized

representative;

(2) Airport officials with a need to

know; and

(3) Others designated by the

Administrator.

(j) Employment status while awaiting

criminal record checks. Individuals who

have submitted their fingerprints and

are awaiting FBI results may perform

work within the SIDA when under

escort by someone who has unescorted

SIDA access privileges.

(k) Recordkeeping. It is the airport

operator’s responsibility to make any

criminal history records request as

appropriate to this regulation, to receive

and review the criminal history records

of applicants, and to maintain and

destroy these sensitive documents. The

criminal record responsibilities shall be

carried out only by direct airport

operator employees. The airport

operator shall maintain and control in a

manner acceptable to the Administrator

the following written records for each

individual until 180 days after the

termination of the individual’s authority

for unescorted access or the individuals

authority to authorize others to have

unescorted access:

(1) A record of each individual subject

to an employment background

investigation that includes:

(i) The application;

(ii) The employment verification

information obtained by the employer;

(iii) The names of those from whom

the employment verification

information was obtained;

(iv) The date and the method of how

the contact was made; and

(v) Any other information as required

by the Administrator.

(2) A record for each individual

subject to a criminal history records

check shall include, in addition to the

records in paragraph (k)(1) of this

section, the results of the record check,

or a certification by the airport operator

or air carrier that the check was

completed and did not uncover a

disqualifying conviction.

(l) Continuing responsibilities.

(1) Any individual authorized to have

unescorted access privileges or who

may authorize others to have unescorted

access privileges who is subsequently

convicted of any of the crimes listed in

paragraph (b)(2) of this section shall

report the conviction to the airport

operator and surrender the SIDA access

medium within 24 hours to the issuer.

(2) If information becomes available to

the airport operator or the tenant

employer indicating that an individual

has a possible conviction for one of the

disqualifying crimes in paragraph (b)(2)

of this section, the airport operator shall

determine the status of the conviction.

If a disqualifying conviction is

confirmed the airport operator shall

withdraw any authority granted under

this section.

(m) Exceptions. Notwithstanding the

requirements of this section, an airport

operator may authorize the following

individuals to have unescorted access to

the SIDA or perform functions listed in

paragraph (a) of this section:

(1) Employees of the Federal

government or a state or local

government (including law enforcement

officers) who, as a condition of

employment, have been subject to an

employment investigation which

includes a criminal history records

check.

(2) Crew members of foreign air

carriers covered by an alternate security

arrangement in the approved airport

security program.

(3) An individual who has been

continuously employed in a position

requiring unescorted access by another

airport operator, airport tenant or air

carrier.

(n) Investigations by air carriers and

tenants. An airport operator will be

deemed to be in compliance with its

obligation under paragraph (b) of this

section, as applicable, when it accepts

one of the following:

(1) certification from an air carrier

subject to section 108.33 of this chapter

that it has complied with section 108.33

(b)(1) and (b)(2) for the individual, or

(2) certification from a tenant that it

has complied with paragraph (b)(1) of

this section for the individual, and the

tenant includes the completed

employment background investigation

file.

(o) Airport operator responsibility.

The airport operator shall:

(1) Designate the airport security

coordinator to be responsible for

reviewing and controlling the results of

the employment background

investigation;

(2) Designate the airport security

coordinator to serve as the contact to

receive notification from individuals

applying for unescorted access of their

intent to seek correction of their

criminal history record with the FBI;

and

(3) Audit the employment background

investigations performed in accordance

with this section, except those

employment background investigations

subject to certification under paragraph
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules 13271

(n)(1). The audit process shall be set

forth in the airport security program.

PART 108—AIRPLANE OPERATOR

SECURITY

3. The authority citation for Part 108

is revised to read as follows:

Authority: 49 U.S.C. 106(g), 40101, 40102,

40113, 40119, 44701–44713, 44901–44915,

44931–44937, 46105; Sec. 306, Pub. L. 104–

264, 110 Stat. 3213, 49 U.S.C. 44936.

4. Section 108.33 is revised to read as

follows:

§ 108.33 Employment history, verification

and criminal history records checks.

(a) Applicability.

(1) This section applies to each

individual covered under a certification

made to an airport operator pursuant to

section 107.31(n) of this chapter.

(2) This section applies to each

individual who is issued identification

media that one or more airports approve

for unescorted access within a security

identification display area (SIDA) that is

identified in § 107.25 of this chapter.

(3) This section applies to each

individual who, after [insert effective

date of rule], is hired to perform the

following functions:

(i) Screens passengers or property that

will be carried in a cabin of an aircraft

of an air carrier required to screen

passengers under this part.

(ii) Serves as an immediate

supervisor, also known as a security

checkpoint supervisor (CSS), to those

individuals described in paragraph

(a)(3)(i) of this section or, serves at the

next supervisory level, commonly

referred to as a shift or site supervisor.

(4) This section applies to each

individual who was hired before [insert

effective date of rule] and who after

[insert date 1 year after the effective date

of the rule] performs any of the

functions identified in paragraph (a)(3)

of this section.

(b) Employment history investigations

required. Each air carrier shall ensure

that the following requirements are met

for each individual identified under

paragraph (a) of this section:

(1) The individual has satisfactorily

undergone a review covering the past 10

years of employment history and

verification of the 5 years preceding the

date the employment background

investigation is initiated as provided in

paragraph (c) of this section; and

(2) The results of the employment

background investigation do not

disclose that the individual has been

convicted or found not guilty by reason

of insanity, in any jurisdiction, during

the 10 year ending on the date of such

investigation, of a crime involving any

of the following crimes enumerated in

paragraphs (b)(2)(i) through (xxv) of this

section. Where specific citations are

listed, both the current citation and the

citation that applied before the statute

was recodified in 1994 are listed.

(i) Forgery of certificates, false

marking of aircraft, and other aircraft

registration violation, 49 U.S.C. 46306

[formerly 49 U.S.C. App. 1472(b)];

(ii) Interference with air navigation,

49 U.S.C. 46308 [formerly 49 U.S.C.

App. 1472(c)];

(iii) Improper transportation of a

hazardous material, 49 U.S.C. 46312

[formerly 49 U.S.C. App. 1472(b)(2)];

(iv) Aircraft piracy, 49 U.S.C. 46502

[formerly 49 U.S.C. App. 1472(i);

(v) Interference with flight

crewmember members or flight

attendants, 49 U.S.C. 46504 [formerly 49

U.S.C. App. 1472(j)];

(vi) Commission of certain crimes

aboard aircraft in flight, 49 U.S.C. 46506

[formerly 49 U.S.C. App. 1472(k)];

(vii) Carrying a weapon or explosive

aboard aircraft, 49 U.S.C. 46505

[formerly 49 U.S.C. App. 1472(l)];

(viii) Conveying false information and

threats, 49 U.S.C. 46507 [formerly 49

U.S.C. App. 1472(m)];

(ix) Aircraft piracy outside the special

aircraft jurisdiction of the United States,

49 U.S.C. 46502(b) [formerly 49 U.S.C.

App. 1472(n)];

(x) Lighting violations involving

transporting controlled substances, 49

U.S.C. 46315 [formerly 49 U.S.C. App.

1472(q)];

(xi) Unlawful entry into an aircraft or

airport area that serves air carriers or

foreign air carriers contrary to

established security requirements, 49

U.S.C. 46314 [formerly 49 U.S.C. App.

1472(r)];

(xii) Destruction of an aircraft or

aircraft facility, 18 U.S.C. 32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

(xx) Unlawful possession, use, sale,

distribution, or manufacture of an

explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

(xxiii) Distribution of, or intent to

distribute, a controlled substance;

(xxiv) Felony arson; or

(xxv) Conspiracy or attempt to

commit any of the aforementioned

criminal acts.

(c) Investigative steps. The

employment background investigation

shall consist of the following steps:

(1) The individual shall provide the

following information on an application

form:

(i) The individual’s full name,

including any aliases or nicknames.

(ii) The dates, names, phone numbers,

and addresses of previous employers,

with explanations for any gaps in

employment of more than 12

consecutive months, during the

previous 10-year period.

(iii) Any convictions during the

previous 10-year period of the crimes

listed in paragraph (b)(2) of this section.

(2) The air carrier shall include on

their application form a notification that

the individual will be subject to an

employment history verification and

possibly a criminal history records

check.

(3) The air carrier shall verify the

identity of the individual through the

presentation of two forms of

identification, one of which must bear

the individual’s photograph.

(4) The air carrier shall verify the

information on the most recent 5 years

or employment history required under

paragraph (c)(1)(ii) of this section.

Information shall be verified in writing,

by documentation, by telephone, or in

person.

(5) If one or more of the following

conditions exists, the employment

background investigation shall not be

considered complete unless it includes

a check of the individual’s fingerprintbased criminal history record

maintained by the Federal Bureau of

Investigation (FBI). The air carrier may

request a check of the individual’s

fingerprint-based criminal history

record only if one or more of the

following conditions exists:

(i) The individual does not

satisfactorily account for a period of

unemployment of 12 months or more

during the previous 10-year period.

(ii) The individual is unable to

support statements made on the

application form.

(iii) There are significant

inconsistencies in the information

provided on the application.

(iv) Information becomes available to

the air carrier during the investigation

indicating a possible conviction for one

of the crimes listed in (b)(2).

(d) Individual notification. Prior to

commencing the criminal history

records check, the air carrier shall notify

the affected individual and identify a

point of contact for follow-up.

(e) Fingerprint processing. The air

carrier shall collect and process

fingerprints in the following manner:

(1) One set of legible and classifiable

fingerprints shall be recorded on

fingerprint cards approved by the FBI,
13272 Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules

and distributed by the FAA for this

purpose.

(2) The fingerprints shall be obtained

from the individual under direct

observation by the air carrier or a law

enforcement officer. Individuals

submitting their fingerprints shall not

take possession of their fingerprint card

after they have been fingerprinted.

(3) The identity of the individual shall

be verified at the time fingerprints are

obtained. The individual shall present

two forms of identification, one of

which must bear the individual’s

photograph.

(4) The fingerprint card shall be

forwarded to Federal Aviation

Administration, 800 Independence

Ave., SW., Washington, DC 20591

(ATTN: ACO–300, Fingerprint

Processing).

(5) Fees for the processing of the

criminal history record checks are due

upon application. Air carriers shall

submit payment through corporate

check, cashier’s check, or money order

made payable to ‘‘U.S. FAA,’’ at the

prevailing rate for each fingerprint card.

Combined payment for multiple

applications is acceptable. The

prevailing rate for processing the

fingerprint cards is available from the

local FAA security office.

(f) Determinaiton of arrest status. In

conducting the criminal history records

check required by this section, the air

carrier shall investigate arrest

information for the crimes listed in

paragraph (b)(2) of this section for

which no disposition has been recorded

to make a determination of the outcome

of the arrest.

(g) Availability and correction of FBI

records and notification of

disqualification.

(1) At the time the fingerprints are

taken, the air carrier shall notify the

individual that a copy of the criminal

history record received from the FBI

will be made available if requested in

writing. When requested in writing, the

air carrier shall make available to the

individual a copy of any criminal

history record received from the FBI.

(2) Prior to making a final

determination to deny authorization to

individuals described in paragraph (a)

of this section, the air carrier shall

advise individuals that the FBI criminal

history record discloses information that

would disqualify them from positions

covered under this rule and provide

each individual with a copy of their FBI

record if it has been requested.

(3) The air carrier shall notify an

individual that a final determination has

been made to grant or deny authority for

unescorted access, or for performing

functions listed under paragraph (a) (2),

(3), or (4) of this section.

(h) Corrective action by individuals.

Individuals may contact the local

jurisdiction responsible for the

information and the FBI to complete or

correct the information contained in

their record before any final access

determination is made, subject to the

following conditions:

(1) Within 30 days after being advised

that the criminal history record received

from the FBI discloses disqualifying

information, individuals must notify the

air carrier, in writing, of their intent to

correct any information believed to be

inaccurate.

(2) Upon notification by an individual

that the record has been corrected, the

air carrier must obtain a copy of the

revised FBI criminal history record prior

to making a final determination.

(3) If no notification is received

within 30 days, the air carrier may make

a final determination.

(i) Limits on dissemination of results.

Criminal history record information

provided by the FBI shall be used solely

for the purpose of this section, and no

person shall disseminate the results of

a criminal history records check to

anyone other than:

(1) The individual to whom the record

pertains or that individual’s authorized

representative;

(2) Air carrier officials with a need to

know; and

(3) Others designated by the

Administrator.

(j) Employment status while awaiting

criminal record checks. Individuals who

have submitted their fingerprints and

are awaiting FBI results may perform

work under the following conditions:

(1) Those seeking unescorted access to

the SIDA must be escorted by someone

who has unescorted SIDA access

privileges;

(2) Those applicants seeking positions

covered under paragraphs (a)(2), (3), or

(4) of this section shall not exercise any

independent judgments regarding those

functions.

(k) Recordkeeping. It is the air

carrier’s responsibility to make any

criminal history records request as

appropriate to this regulation, to receive

and review the criminal history records

of applicants, and to maintain and

destroy these sensitive documents. The

criminal record responsibilities shall be

carried out only by direct air carrier

employees. The air carrier shall

physically maintain and control in a

manner acceptable to the Administrator

the following written records for each

individual until 180 days after ceasing

to perform the functions identified in

paragraph (a) of this section.

(1) A record of each individual subject

to an employment background

investigation that includes:

(i) The application;

(ii) The employment verification

information obtained by the air carrier;

(iii) The names of those from whom

the employment verification

information was obtained;

(iv) The date and the method of how

the contact was made; and

(v) Any other information as required

by the Administrator.

(2) A record for each individual

subject to a criminal history records

check shall include, in addition to the

records in paragraph (k)(1) of this

section, the results of the records check,

or a certification by the air carrier that

the check was completed and did not

uncover a disqualifying conviction.

(l) Continuing responsibilities. (1) Any

individual authorized to have

unescorted access privilege to the SIDA

or that perform functions covered under

paragraphs (a)(2), (3), or (4) of this

section, who is subsequently convicted

of any of the crimes listed in paragraph

(b)(2) of this section, shall report the

conviction within 24 hours to the air

carrier and surrender the SIDA access

medium or any identification medium

provided to them related to positions

covered under (a)(2), (3) or (4) of this

section.

(2) If information becomes available to

the air carrier indicating that an

individual has a possible conviction for

one of the disqualifying crimes in

paragraph (b)(2) of this section, the air

carrier shall determine the status of the

conviction. If the conviction is

confirmed the air carrier shall withdraw

any authority granted under this

section.

(m) Air carrier responsibilities. The air

carrier shall—

(1) Designate an individual at each

airport to control and maintain the

employment background investigation

files of individuals for whom the air

carrier has made a certification to the

airport operator under § 107.31(n)(1) of

this chapter.

(2) Designate an individual, in the

security program, to oversee the control

of employment background

investigation files of individuals subject

to section 108.33(a) (2), (3), or (4). The

files shall be kept in a location or

locations acceptable to the

Administrator and identified in the

security program.

(3) Audit the employment background

investigations performed in accordance

with this section. The audit process

shall be set forth in the air carrier

approved security program.
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 / Proposed Rules 13273

Issued in Washington on March 14, 1997.

Anthony Fainberg,

Director, Office of Civil Aviation Security

Policy and Planning.

[FR Doc. 97–6947 Filed 3–14–97; 3:19 pm]

BILLING CODE 4910–13–M