[Federal Register Volume 60, Number 191 (Tuesday, October 3, 1995)]
[Rules and Regulations]
[Pages 51854-51871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24546]
[[Page 51853]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 107 and 108
Unescorted Access Privilege; Final Rule
Federal Register / Vol. 60, No. 191 / Tuesday, October 3, 1995 /
Rules and Regulations
[[Page 51854]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 107 and 108
[Docket No. 26763; Amendment Nos. 107-7, 108-12]
RIN 2120-AE14
Unescorted Access Privilege
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: The FAA is issuing final regulations requiring airport
operators and air carriers to conduct an employment investigation and
disqualify individuals convicted of certain enumerated crimes from
having, or being able to authorize others to have, unescorted access
privileges to a security identification display area (SIDA) of a U.S.
airport. This rule implements the employment investigation provisions
of Section 105 of the Aviation Security Improvement Act of 1990. The
rule will enhance the effectiveness of the U.S. civil aviation security
system by ensuring that individuals applying for unescorted access
privileges do not constitute an unreasonable risk to the security of
the aviation system.
EFFECTIVE DATE: January 31, 1996.
FOR FURTHER INFORMATION CONTACT:
Robert Cammorroto (202-267-7723) or Linda Valencia (202-267-8222),
Office of Civil Aviation Security Policy and Planning, Policy and
Standards Division, (ACP-100), Federal Aviation Administration, 800
Independence Avenue, SW., Washington, DC 20591.
SUPPLEMENTARY INFORMATION:
Availability of Document
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Public
Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence
Avenue, SW., Washington, DC 20591, or by calling (202) 267-3484.
Communications must identify the amendment number or docket number.
Persons interested in being placed on a mailing list for future rules
should also request a copy of Advisory Circular No. 11-2A, which
describes the application procedures.
Background
Throughout the last decade, the FAA has recognized the need to
investigate the backgrounds of individuals authorized to have
unescorted access to security-restricted areas at U.S. airports. On
November 26, 1985, the FAA amended airport and air carrier security
programs to require 5-year background checks for individuals applying
for unescorted access authority to the security controlled areas of an
airport. The check requires the verification of such individual's
employment history and references for the previous 5 years to the
extent allowable by law.
The December 21, 1988, destruction of Pan American World Airways
Flight 103 by a terrorist bomb while in flight over Lockerbie,
Scotland, was the worst disaster of its kind in U.S. civil aviation
history. In response to this tragedy, on August 4, 1989, President Bush
established the President's Commission on Aviation Security and
Terrorism (Commission) (E.O. 12686) to assess the overall effectiveness
of the U.S. civil aviation security system.
The Commission's May 15, 1990, report presented a series of
recommendations intended to improve the U.S. civil aviation security
system. The Commission recommended that Congress enact legislation
requiring a criminal history records check for airport employees. The
Commission further recommended that the legislation identify certain
crimes that indicate a potential security risk, and enable airport
operators to deny employment in positions requiring access to security
sensitive areas on that basis. The Commission's recommendations formed
the basis of the Aviation Security Improvement Act of 1990, Pub. L.
101-604 (the Act).
Section 105(a) of the Aviation Security Improvement Act (the Act)
now codified as 49 U.S.C. 44936, added a new provision to the statute.
This provision directs the FAA Administrator to promulgate regulations
that subject individuals with unescorted access to U.S. or foreign air
carrier aircraft, or to secured areas of U.S. airports serving air
carriers, to such employment investigations, including a criminal
history records check, as the Administrator determines necessary to
ensure air transportation security.
In March 1991, the aviation industry provided suggestions for
implementing Section 105 of the Act through the Aviation Security
Advisory Committee (ASAC). These recommendations assisted the FAA in
developing its initial notice of proposed rulemaking (NPRM) published
in the Federal Register on February 13, 1992 (Notice No. 92-3; 57 FR
5352). In that notice the FAA proposed to require a criminal history
records check, using the Federal Bureau of Investigation's (FBI)
fingerprint-based national criminal history record filing system, for
all individuals (including current employees) with SIDA unescorted
access privileges. In that proposal, the FAA used the broad authority
delegated to the FAA Administrator in the Act to require an employment
investigation, including a criminal history records check.
On March 12, 1992, responding to requests from airport operators
and air carriers, the FAA extended the comment period for that proposal
from March 16 until May 15, 1992 (Notice No. 92-3A; 57 FR 8834), and
announced a series of public meetings. The FAA published the notice
outlining the details of the public meetings on April 9, 1992 (Notice
No. 92-3B; 57 FR 12396). Public meetings were held in Los Angeles,
California on April 28; Ft. Worth, Texas on April 30; and Washington,
D.C. on May 12, 1992. The FAA received over 270 written comments to the
docket and 66 commenters made oral presentations at the public
meetings.
The overwhelming majority of commenters opposed FAA's proposal to
require a criminal history records check for all individuals having
unescorted access to the SIDA, and the proposal to require escorts for
anyone inside the SIDA who did not have such a records check.
Specifically, commenters argued that individuals with existing
unescorted access privileges should be excluded from the criminal
history records check requirement, and that the proposed escorting
requirements were neither practical nor cost-effective. Some commenters
questioned whether any benefit would result from requiring a criminal
history check. Because of these concerns, commenters strongly
recommended that the FAA exercise more flexibility in implementing the
employment investigation provision of the Act.
Discussion of the SNPRM
In response to comments received during the public meetings and the
FAA's re-evaluation of the NPRM, the FAA issued a supplemental notice
of proposed rulemaking (SNPRM) (Notice No. 92-3C; 57 FR 43294) on
September 18, 1992. The SNPRM focused more broadly on the employment
investigation process for individuals applying for unescorted access
privilege. The SNPRM proposed an expanded employment application form,
an enhanced 5-year employment history verification and, only where
appropriate, a criminal history records check. Under this approach, a
criminal history records check would be required only when the
employment application process, including the history verification,
``triggers'' a need for one.
[[Page 51855]]
The proposed fingerprint-based criminal history records check process
was similar to that proposed in the NPRM.
Discussion of SNPRM Comments
The FAA received 34 comments in response to the SNPRM. Commenters
included Congressman James L. Oberstar, 12 airport operators, 3 air
carriers, 2 individuals, 3 small businesses, 1 state transportation
department, the Federal Bureau of Investigation, the U.S. Customs
Service and the following aviation organizations: Air Transport
Association (ATA), Air Transport Association of Canada (ATAC), Aircraft
Owners and Pilots Association (AOPA), Airline Pilots Association
(ALPA), Airport Law Enforcement Agencies Network (ALEAN), Airports
Association Council International (AACI), American Association of
Airport Executives (AAAE), Association of Flight Attendants (AFA),
Families of Pan Am 103/Lockerbie, National Air Transportation
Association (NATA), and Regional Airline Association (RAA).
Fifteen commenters support the employment investigation proposed in
the SNPRM. Several of these commenters commend the FAA for its response
and attention in addressing many of their major concerns in the initial
notice.
Seven commenters oppose the proposal, arguing against the need for
the employment investigation because no documented terrorist act has
ever been committed by someone with both unescorted access privileges
and a record of conviction for one of the disqualifying crimes listed
in the Act. One commenter questions the link between past convictions
for disqualifying crimes and future terrorist actions. Two commenters,
a member of Congress and the Families of Pan Am 103/Lockerbie, want a
more extensive employment investigation than that proposed in the
SNPRM. They suggest extending the employment verification portion to 10
years and applying the employment investigation to individuals with
existing unescorted access privilege.
Three commenters also discuss the degree of discretion provided the
Administrator in implementing the employment investigation requirement
of the Act. One commenter states that the Act does not require this
regulation and the FAA should not issue a final rule. Another states
that the Act requires only an employment investigation with a criminal
history check as the Administrator determines necessary. According to
this commenter, issuance of a rule is completely discretionary. A third
commenter contends that the statute mandates an employment
investigation, not a criminal history records check.
FAA Response: This rule enhances existing FAA security requirements
and supports the objectives of the Act through a cost-effective and
practical regulatory program. The FAA's security requirements focus on
protecting persons and property in air transportation against acts of
criminal violence, air piracy, and terrorism. These acts are neither
simple nor uniform, and are certainly not limited to sophisticated acts
of international terrorists with political motives or acts of deranged
individuals. Also of concern are individuals deliberately committing,
or deliberately or unknowingly assisting in the commission of criminal
acts against aviation for financial gain or reprisal. For example,
individuals with a history of felony narcotics distribution may be more
susceptible to exploitation by those wishing to target a passenger
aircraft. In this scenario, the employee would wittingly assist in
placing a package of purported narcotics on the aircraft, only to find
later that the packet actually contained an explosives device. A trust
is placed in individuals authorized to have unescorted access, and it
is reasonable to establish measures to reduce the likelihood that they
will present a security risk to civil aviation.
The U.S. aviation industry has not experienced incidents in which
there was a direct relation between the disqualifying offenses and a
serious security incident, such as a terrorist bombing or hijacking.
However, the Act indicates Congress' concern that an individual's
criminal history could show a disposition to engage in such conduct in
the future, which could result in a serious security incident.
Moreover, it is a reasonable and feasible precaution to prohibit
unescorted access to individuals with a criminal record for certain
types of crimes. This rule uses practices similar to other industry
standards (e.g., bankers, stockbrokers and employees at nuclear
facilities).
The Act requires the FAA to issue regulations subjecting
individuals with unescorted access to U.S. or foreign air carrier
aircraft, or to SIDAs of U.S. airports, to such employment
investigations, including a criminal history records check, as the
Administrator determines necessary to ensure air transportation
security. While the Act gives the Administrator flexibility in
implementing the employment investigation provision, the Congress
clearly contemplated that granting unescorted access privileges would
be tied to some type of employment investigation.
In response to the public hearings and written comments, the FAA
modified the initial proposal and developed the SNPRM to enhance
aviation security in a more cost-effective manner. The Conference
Report on the Department of Transportation Fiscal Year 1993
Appropriations legislation addressed the FAA's SNPRM stating:
The conferees have agreed to delete the language proposed by the
House that would have prohibited the Federal Aviation Administration
from implementing a rule to require criminal background checks of
airline and airport employees. The conferees' action is based on the
Federal Aviation Administration's Supplemental Notice of Proposed
Rulemaking published in the September 18, 1992, Federal Register in
which the Federal Aviation Administration revised an earlier
proposed rulemaking. The conferees recognize that the Federal
Aviation Administration has used its discretionary authority to
address the many concerns raised by the industry groups about the
operational, financial and constitutional issues associated with its
earlier proposal, and have concurred that the Federal Aviation
Administration should not be prohibited from moving forward with
this approach.
This action clarified Congress' view that the SNPRM conforms with
the legislative intent of the Act.
Discussion of the Final Rule
The FAA developed this final rule based on the legislative mandate
and the comments received during the rulemaking process. This rule
amends 14 CFR parts 107 and 108; and parts 107 and 108 of the Federal
Aviation Regulations (FAR). The rule expands the pre-existing
requirements for an investigation into the background of individuals
applying for unescorted access privileges to the SIDA of U.S. airports
by providing specific guidelines for requirements.
The final rule augments and clarifies the process required to
satisfactorily determine the eligibility of individuals for unescorted
access privileges. This rule requires the employment investigation to
include: provision of a 10-year employment history by those applying
for access; verification of the most recent 5 years of that history by
the employer; and the completion of a criminal history records check
when specific conditions are identified as a result of the information
obtained through the investigation process.
Similar in concept to the SNPRM, this final rule strengthens the
existing employment investigation requirement by providing specific
guidance on the type of information that must be
[[Page 51856]]
obtained and evaluated, identifying specific ``triggers'' that indicate
a need to conduct a criminal history records check, and establishing
recordkeeping requirements. This final rule differs from the SNPRM in
that it requires individuals applying for unescorted access privileges
to provide their employment history for a period of 10 years prior to
the date of application rather than 5 years. While the employer will
have to review the entire application, consistent with the SNPRM, only
the most recent 5 years of this history need be verified as part of the
employment investigation review. Hence, while an applicant will have to
provide additional employment history information, this will not
materially increase the burden on airport operators, air carriers or
other non-air-carrier airport tenants involved in granting unescorted
access privileges. The FAA believes that this approach increases the
effectiveness of the rule in identifying individuals with unexplained
gaps in employment who may have been convicted of the disqualifying
crimes during the past 10 years and will afford employers additional
information on which to base access determinations.
This final rule also modifies a key term used throughout the rule
to further clarify its intent. Since it was used in the Act, the term
``employment investigation'' was used extensively in the NPRM and the
SNPRM. While both notices specified that the ``employment
investigation'' is really related to access authority and not
necessarily to employment decisions, the final rule uses the term
``access investigation.'' The FAA believes that this term better
describes the intent of the rule.
The FAA Act of 1958 was recodified and appeared at 49 U.S.C.
Subtitle VII, then under Public Law 103-272, (effective July 5, 1994)
recoding occurred under 49 U.S.C. Code ``Transportation''. This Final
Rule lists both the new statutory numbers for crimes committed and the
former citations, in part because FBI records are likely to only have
the latter citations.
Another modification to the SNPRM is that the FAA will act as the
clearinghouse for criminal history records checks. The procedures for
processing fingerprint cards and associated fees are discussed later in
this preamble under Sec. 107.31(i), `Fingerprint Processing.''
Further Action Considered
Although this final rule makes an important improvement to the
civil aviation security system, and is fully consistent with the
rulemaking record, the FAA is currently evaluating whether further
changes may be warranted. Subsequent to the close of the comment period
for the SNPRM, this country has experienced two major acts of domestic
terrorism. The World Trade Center bombing and the recent bombing of a
Federal office building in Oklahoma City are evidence of the threat of
terrorism within the United States. While neither incident involved an
aviation target or appears to have involved individuals who had a
disqualifying criminal record that would have been disclosed by an FBI
fingerprint check, the incidents to raise questions about whether a
broader rule should be considered in light of the general level of
threat. It also raises questions about whether the statutory authority
should be expanded to include other persons with security
responsibilities, such as checkpoint screeners, who do not necessarily
have unescorted access to air carrier aircraft or to the secured area
of an airport. However, the FAA has concluded that it is essential and
appropriate to move forward with this final rule on the existing record
and not further delay action until the FAA's evaluation and possible
further rulemaking are completed.
The FAA intends to actively consult with airport operators and air
carriers as part of this evaluation. The effect of this rule and its
actual implementation by airports and air carriers will be followed
closely from the outset. In addition, input will be sought from the
Aviation Security Advisory Committee. The FAA will determine what
further actions may be necessary based on the evaluation. The FAA also
will review intelligence information in relation to the possible impact
of a more extensive criminal history check requirement.
Section-by-Section Analysis
Section 107.1 Applicability and Definitions
Escort
In the SNPRM, the FAA defined the term ``escort'' in
Sec. 107.1(b)(3). One commenter, NATA, states that the proposed
definition of escort implies that this function and any associated
responses must be performed by the same individual. NATA suggests that
an individual other than the one performing the escort be allowed to
perform follow-up actions, and that escorting by electronic means be
allowed.
FAA Response: This rule retains the definition of ``escort'' that
was included in the SNPRM, with minor modifications. Only an individual
authorized by the airport operator to have access to areas controlled
for security purposes may perform escorting. Specific action must be
taken, in accordance with local airport procedures, if the individual
under escort engages in activities other than those for which the
escorted access is granted. The definition is modified by adding a
sentence that explains that necessary responsive actions can be taken
by the escort or other authorized individuals.
The definition of escort adopted in this rule includes a
performance standard. The definition provides the latitude to use
various methods and procedures for the escort as long as they meet the
established standard. For example, an airport could choose to establish
escorting procedures for its general aviation areas that use electronic
means and prescribe specific follow-up actions.
Section 107.31 Access Investigation
107.31(a)--Applicability
Area Covered
Six commenters to the SNPRM discuss the applicability of the
regulation to the SIDA. RAA, ATA, and AOPA contend that at some
airports broad SIDA definitions include the entire air operations areas
(AOA). The commenters believe the FAA should mandate a consistently
defined, limited SIDA.
An airport operator requests a broader applicability of the rule
stating that two different levels of employment verification for SIDA
and non-SIDA areas controlled for security purposes will be confusing.
This operator recommends the rule apply uniformly to all areas that
require identification badges. AACI and AAAE contend that one standard
should apply to all, and they are particularly concerned that
individuals performing air carrier screening are not included in the
employment investigation rulemaking.
FAA Response: This rule applies only to airports that require
continuous display of airport-approved identification, i.e., the SIDA
as defined in Sec. 107.25. The SIDA typically includes the secured area
of an airport (Sec. 107.14 secured area) and some or all of the air
operations areas (Sec. 107.13).
FAA guidance has defined the areas and types of operations for
inclusion within the SIDA. Any expansion of an airport SIDA requires
FAA approval. In such instances, application of the policy guidance
assures uniformity to the extent practical. Given the varied
operational areas at airports, it is not
[[Page 51857]]
practical for the FAA to further define SIDA in the regulation.
The FAA has clarified that this rule does not apply to smaller
airports that do not have a continuous display requirement by removing
the reference to these airports contained in Sec. 107.31(a)(2) of the
SNPRM. However, if an airport has an area controlled for security
reasons that is not a SIDA, the existing 5-year employment history
verification continues to apply to individuals requesting unescorted
access authority.
The access investigation requirement of this rule applies to
individuals seeking unescorted access privileges in the SIDA as well as
those in a position to authorize others to have such access and
supersedes the 5-year employment history verification in the airport
security program for the covered individuals. The issuance or denial of
an identification credential for continuous display in the SIDA serves
as the vehicle for implementation of this requirement from a practical
and enforcement standpoint.
For individuals applying for positions that do not require SIDA
unescorted access privileges (and thus are not covered by this rule),
the existing security program language requiring the 5-year employment
history verification will continue to apply. This includes security
screening personnel and any other individuals with unescorted access
only to security-controlled areas outside of a SIDA. While having
somewhat different requirements may result in some extra administrative
effort, the commenters did not provide any specific information showing
that this will significantly increase the burden on airports. Except
for the authority to access an applicant's criminal history record, an
employer may use the application process specified in this rule in all
circumstances.
Definition of Employer
One commenter points out that the SNPRM implies that all persons
for whom an airport operator may authorize or deny unescorted access
privileges are employees of the airport subject to being hired or fired
by the airport operator. This commenter explains that many individuals
applying for unescorted access privileges are not airport operator
employees.
Two commenters address the consequences of the employment
investigation proposed in the SNPRM on the employment process. One
commenter believes the rule would affect the issuance of unescorted
access authority rather than employment. The other commenter states
that an employer would probably not hire a person who, based on
preliminary employment investigation results, cannot be authorized for
unescorted access privileges without going through a FBI criminal
record history check. This commenter assumes the termination of the
employment inquiry if it appears that a criminal records check is
needed.
FAA Response: The FAA agrees that the intent of the investigation
is to determine an individual's eligibility for unescorted access
authority. The Act, and the final rule, do not specifically prohibit
the employment of disqualified individuals; rather, they prohibit
individuals convicted of certain enumerated crimes in the past 10 years
from being employed in a position having unescorted access to secured
areas of a U.S. airport or to U.S. and foreign air carrier aircraft. As
previously noted, the final rule uses the term ``access investigation''
rather than ``employment investigation,'' which was used in the NPRM
and SNPRM. This change was made to clarify the intent of the rule. The
FAA recognizes that individuals affected by the rule include current
employees not previously granted unescorted access authority and
prospective employees of an airport operator, air carrier, tenants
other than air carriers, and contractors whose positions require
unescorted access. This rule does not attempt to establish guidance,
beyond ineligibility for unescorted access privileges, for the
disposition of an individual whose access investigation reveals a
conviction for a disqualifying crime.
Individuals With Current Access Authority
Sixteen commenters address exempting individuals with existing
unescorted access authority from the proposed employment investigation.
Fifteen of these commenters (including air carriers, airport operators,
unions, and non-air-carrier airport tenants) fully support the language
in the SNPRM that would exempt from the required employment
investigation all individuals who have current unescorted access
authority on the effective date of the final rule. This support follows
the recommendations made by the ASAC and numerous comments received in
response to the initial notice and the SNPRM.
One commenter (Congressman Oberstar) opposes the exclusion for
individuals with existing access authority. Congressman Oberstar
contends that the Commission's report recommendation and the Act's
employment investigation provision are intended to cover individuals
with existing authority and individuals applying for unescorted access
privilege. He argues that the existing 5-year employment history
verification is not subject to FAA approval, and the FAA has not
provided guidance on what constitutes an acceptable check. Therefore,
Congressman Oberstar states that the final rule must ``require that
current employment investigation programs conform with those mandated
in the final rule'' and that ``employers with non-conforming programs
must be required to conduct 5-year employment checks of current
employees to assure that they have undergone the same scrutiny as
applicants.''
One commenter is uncertain whether individuals exempted under the
proposal with a previous conviction for a disqualifying crime would
lose their privileges for unescorted access.
FAA Response: While the Act gives the FAA authority to require
employment investigations for individuals currently authorized for
unescorted access privileges, the Act confers discretion on the FAA
Administrator on methods for imposing such a requirement. Individuals
authorized to have unescorted access privileges since November 26,
1985, have been subjected to a 5-year employment history verification
required by the FAA in the security programs of airport operators and
air carriers. Since granting these individuals unescorted access
privileges, airport operators and air carriers have had the opportunity
to observe the individual's conduct.
The benefits, if any, of subjecting current employees with
unescorted access authority to the proposed access investigation would
not justify the disruption and cost that such a requirement would place
on the air carriers and airport operators. The estimated cost for
verifying employment histories of all existing employees would be an
additional $5.4 million. Further, because of typically high turnover
rates, much of the employee population with unescorted access will have
been subjected to the expanded background check within a relatively
short period. Therefore, the FAA concludes that air transportation
security does not require the retroactive application of this rule to
individuals with current unescorted access authority.
This rule does not require individuals currently authorized to have
unescorted access to disclose a past conviction for a disqualifying
crime. However, if a conviction occurs after the effective date
[[Page 51858]]
of this rule, an individual with unescorted access authority will be
subject to self-disclosure and disqualification from unescorted access
privileges (see the Individual Accountability requirements of
Sec. 107.31(l) and Sec. 108.33(h)).
120-Day Effective Date
Ten commenters address the timeframe between the final rule
issuance date and the effective date the industry must begin to comply
with the employee investigation requirements proposed in the SNPRM. Two
commenters agree with the 90-day implementation period and seven
commenters argue for a longer period of time. These commenters contend
that additional time is needed for airport operators, air carriers, and
airport tenants to set up the administrative procedures necessary to
implement the rule, coordinate with other airports on rights of
transfer, budget and plan for required expenditures, and train
personnel to implement the rule. Another states that an extended time
period will prevent difficulties similar to those being experienced
with the implementation of Sec. 107.14. ATA suggests a period of six
months to a year and another commenter proposes phasing in the
regulation, starting with the Category X airports one year after the
effective date. AACI and AAAE recommend that the effective date, rather
than the Federal Register publication date, be used to exclude
individuals holding existing unescorted access privileges from the
employment investigation requirements.
FAA Response: The affected parties have been provided ample
opportunities to comment on the implementation of Section 105 of the
Act through ASAC recommendations, and in response to the NPRM (for
which the comment period was extended), three public meetings, and the
revised proposal in the SNPRM. The access investigation requirements of
this rule should not place an excessive administrative burden on
airport operators and air carriers. The requirement to modify the
existing 5-year employment history verification and establish a
procedure to conduct a criminal history records check, where necessary,
utilizes many existing practices and procedures. However, as this rule
will affect a wide spectrum of airport tenants, and in hopes of
ensuring a smooth and orderly transition to the new procedures, the FAA
is making the rule effective 120 days after publication in the Federal
Register.
Section 107.31(b)--Access Investigation Requirements
Coverage of Access Investigation
Of the 15 commenters responding on this issue, 13 concur with the
FAA's proposal to use the 5-year rather than a 10-year employment
history verification as the primary screening procedure. The commenters
supporting the 5-year verification argue that covering more than 5
years would produce less useful information because it would be
difficult to find previous employers to provide reliable references,
require more staff and take a longer time to complete, resulting in
additional costs. According to these commenters, the expanded
application form, which includes the applicant's certification as to
prior criminal convictions, coupled with the enhanced 5-year
verification is sufficient to alert management of a need for further
investigation. One air carrier comments that it currently requires
applicants to provide 10 years of employment information, although it
only verifies the previous 5 years.
The two commenters opposing the 5-year employment verification,
Congressman Oberstar and the Families of Pan Am 103, believe that it
will not reveal convictions that may have occurred in the previous 10
years and that the proposal does not comply with the Act.
FAA Response: At the SNPRM stage, the FAA considered increasing the
employment history verification from 5 years to 10 years. It determined
that to do so would increase the costs and time spent on the
verification without appreciably enhancing aviation security. This
could result in triggering relatively few additional records checks,
but at an additional cost of at least $5.50 per access investigation or
about $9 million over the next decade. However, as a result of the
comments, the FAA carefully reviewed the 10-year employment history
issue. The FAA determined that it would be useful and reasonable to
require individual applicants to provide a 10-year employment history.
The additional information will increase the likelihood of identifying
12-month employment gaps and provide an additional decision tool to
employers.
Under the rule, airport operators, air carriers and other non-air-
carrier airport tenants are required to verify only the most recent 5
years. However, employment gaps of more than 12 months must be resolved
for the entire 10-year period or a records check accomplished. From a
practical viewpoint, the verification of an individual's 5-year
employment history provides an accurate indicator of the individual's
background and of the overall veracity of the information provided by
the applicant on the form. However, the additional employment history
information available to the employer enhances the 5-year verification
portion and increases the deterrent value of the application process.
Applicants planning to fabricate employment history information will be
faced with twice the challenge and their chance of discovery will thus
be increased. Truthful applicants will identify employment gaps that
require further evaluation.
The 10-year period is also covered by requiring the applicant to
list on the application convictions occurring in the past 10 years for
any disqualifying crimes. The application form also must notify
individuals that they will be subject to an employment history
verification and possibly an FBI criminal history records check.
Individuals who are subject to a criminal history records check would
be disqualified if their record discloses a conviction for any of the
listed crimes in the previous 10 years.
Because the disqualifying crimes are serious felonies, an arrest,
conviction, and incarceration would normally show up as a gap in the
individual's employment history, thus triggering a criminal history
records check. The requirement to conduct a criminal history records
check should help discourage anyone with a conviction for one of the
disqualifying crimes from applying for a position requiring unescorted
access authority.
Convictions for Disqualifying Crimes
Twelve commenters discuss the list of convictions for disqualifying
crimes. Three of the commenters specifically agree that arson should be
a disqualifying crime, as the FAA proposed in the SNPRM. AACI and AAAE
oppose having arson included as a disqualifying crime. These
organizations argue that, in their view, there is no significant
history of arson occurring on an airport ramp.
Ten commenters support disqualifying from unescorted access
privileges a person found not guilty by reason of insanity for any of
the disqualifying crimes. Some of the commenters argue that insanity is
not a crime and, therefore, some form of rehabilitation should be
allowed. As an example, the commenters refer to the State of California
system that requires that a person found not guilty by reason of
insanity must be certified as rehabilitated by a court before the
individual's rights are restored. ATA
[[Page 51859]]
points out that, in accordance with its reading of the Act and the
Americans with Disability Act, the FAA has the legal authority and
right to include insanity as a disqualifying factor. Another commenter
states that insanity as a disqualifying factor should be determined on
a case-by-case basis and that the final determination should be based
on national and local FAA field office guidelines to ensure nationwide
consistency.
AACI and AAAE state that ``certain crimes aboard aircraft in
flight'' is too vague and that this disqualifying crime needs to be
better explained. They are also concerned that the regulation would not
permit an employer to take into account rehabilitation. They argue that
the Act is arbitrary because it assumes rehabilitation would
``magically'' occur after 10 years, but cannot be taken into account
before the 10 years for purposes of allowing unescorted access.
Three commenters state that the regulation should not limit the
employer to those crimes on the list. In their view, an employer should
have some discretion to include other crimes or conditions as
disqualifying.
Two commenters assert there should be measures for punishing
applicants who falsify the information they provide on the application
forms or, at a minimum, disqualifying the individual from unescorted
access. One of these commenters states that individuals convicted of
any of the disqualifying crimes would not hesitate to falsify an
application form and that stronger measures are needed, such as making
it a Federal crime to falsify such information.
FAA Response: As proposed, this rule adds felony arson to the list
of disqualifying crimes. (In the SNPRM, FAA proposed ``arson''; the
rationale for the clarifying change can be found below.) The deliberate
nature of the offense and the safety and practical considerations of
fueling aircraft make it logical to do so. Although the FAA is not
aware of any instance where an individual with unescorted access
privileges ever perpetrated an act of arson at an airport, arson has
occurred at airports and is too dangerous an act to omit it from the
list of disqualifying crimes.
Also, in response to comments received on the initial notice and
the SNPRM, this rule adds ``not-guilty by reason of insanity'' for any
of the disqualifying crimes as a disqualifying factor. While
recognizing that insanity is not a crime, the FAA concludes that
insanity associated with a disqualifying crime should be a
disqualifying condition because of the seriousness of these crimes and
the difficulty involved in ascertaining recovery.
The FAA has made some minor clarifying changes to the introductory
language of Sec. 107.31(b). The phrase ``in any jurisdiction'' has been
added to parallel the language of the Act. Also added is the phrase ``a
crime involving * * *'' to the enumerated offenses in order to make
clear that the intent of the rule is to disqualify an individual who
has been convicted of one of the disqualifying offenses, even if the
name of the statute under which the individual was convicted does not
exactly match the language of the final rule. As long as the conviction
involves a crime specified in the rule, the individual would be
disqualified.
In its comment to the NPRM, the Department of Justice's Criminal
Division requested several changes to the rule language to which the
FAA has agreed. The Division suggested that we limit disqualifying
convictions for arson to felony arson in order to exclude instances of
minor vandalism. The Division also requested that some of the
disqualifying offenses be further defined. These revisions include:
Sec. 107.31(b)(2)(xvii): the phrase ``or hostage taking''
has been added after ``kidnapping'';
Sec. 107.31(b)(2)(xix): the phrase ``or aggravated sexual
abuse'' has been added after ``rape'';
Sec. 107.31(b)(2)(xx): the word ``use'' has been added
before ``sale.''
It is the FAA's understanding and intent that these changes clarify
the intent of Congress but do not substantively expand the list of
disqualifying crimes. The Criminal Division also requested that
Sec. 107.31(b)(2)(xxv) be revised to include ``attempts'' to commit any
of the aforementioned criminal acts. The Division states that while
this section, as proposed, included a conviction for conspiracy to
commit any of the enumerated offenses (as required by the Act), the
conduct underlying an attempt may be more serious than that required to
support a conviction of conspiracy. The FAA has therefore revised this
section to include the phrase ``or attempt.''
The Act provides no discretion for rehabilitation, requiring only a
10-year period from the time of the conviction for the disqualifying
offense. This rule also includes the 10-year period for instances of
not guilty by reason of insanity.
In the rule, the FAA does not attempt to further define the
commission of ``certain crimes aboard aircraft'' because it is one of
the named disqualifying crimes from the Act. An individual's criminal
record would reflect convictions for this offense as a specific
violation listed in 49 U.S.C. 46506.
This rule limits the mandatory disqualifying crimes to those
required by the statute and the additional disqualifiers discussed
above. Apart from meeting the requirements of this rule for unescorted
access privileges, an airport operator and air carrier will retain
discretion to determine the suitability and qualifications of
applicants for unescorted access privileges based on any other
information available to them.
This rule does not include penalties for falsifying application
information. It is not a disqualifying condition covered by the Act,
and the decision to deny access based upon falsification would be a
local determination. However, substantial inconsistencies between
required information provided on the application and information
obtained during the access investigation would trigger a criminal
history records check.
If the access investigation discloses a conviction for a
disqualifying crime in the previous 10 years measured from the date the
verification is initiated, the individual may not be granted unescorted
access authority. The Act does not allow the consideration of the
possible rehabilitation of an individual.
The disqualifying crimes identified in this rule include specific
sections of 49 U.S.C. Chapters 463 and 465, sections of the United
States Criminal Code, offenses named in the Act, and two additional
disqualifiers.
The specific sections of 49 U.S.C. Chapters 463 and 465 are: (b)
Sec. 46706 forgery of certificates, false marking of aircraft and other
aircraft registration violations; (c) Sec. 46308 interference with air
navigation; (h) Sec. 46312 improper transportation of a hazardous
material; (i) Sec. 46502 aircraft piracy; (j) Sec. 46504 interference
with flightcrew members or flight attendants; (k) Sec. 46506 commission
of certain crimes abroad aircraft in flight; (l) Sec. 46505 carrying a
weapon or explosive aboard an aircraft; (m) Sec. 46507 conveying false
information and threats; (n) Sec. 46502(b) aircraft piracy outside the
special aircraft jurisdiction of the United States; (q) Sec. 46315
lighting violations involving transporting controlled substances; and
(r) Sec. 46314 unlawful entry into an aircraft or airport area that
serves air carriers or foreign air carriers contrary to established
security requirements.
The disqualifying crime in 18 U.S.C. 32 is the destruction of an
aircraft or aircraft facility.
The other disqualifying crimes are: murder; assault with intent to
murder;
[[Page 51860]]
espionage; sedition; kidnapping or hostage taking; treason; rape or
aggravated sexual abuse; unlawful possession, use, sale, distribution,
or manufacture of an explosive or weapon; extortion; armed robbery;
distribution of, or intent to distribute, a controlled substance;
felony arson; conspiracy or attempt to commit any of these criminal
acts; or a finding of not guilty by reason of insanity for any of these
criminal acts.
This rule does not limit the ability of airport operators and air
carriers to review an individual's complete FBI criminal history
record, although the record may not be requested unless one of the
regulatory triggers is met. However, any decision to deny unescorted
access may be attributed to this rule only if it is based on the
individual's conviction within the previous 10 years of an enumerated
crime. Any other adverse information contained in the criminal record
does not disqualify an individual under this rule.
Section 107.31(c)--Elements of Access Investigations
Employment History Verification
A number of commenters support the process for conducting the
verification outlined in the SNPRM. In the SNPRM, the FAA proposed that
applicants be required to prove their identity by providing two forms
of identification (ID), including a photo ID. In the SNPRM, the FAA
proposed that applicants would have to explain employment gaps of more
than 12 months in the previous 5 years, and that employers would have
to verify information on the application for unescorted access in
writing, by telephone, or in person. The FAA solicited comments on
whether other means of verifying an individual's employment, such as
written documentation, should be acceptable in the verification
process.
Two commenters specifically support accepting documentation instead
of telephone calls or visits to previous employers. One commenter
suggests that legitimate gaps in employment can be documented by copies
of school records or certified letters of references from physicians,
clergy, or other professionals. Two commenters caution that the rule
could have the unintended consequence of generating greater paperwork
burdens on employers who must keep records of how they verified
employment. Another commenter opposes adding security-related
information requirements to its application forms, fearing that such
forms could become needlessly lengthy.
FAA Response: This rule specifies the information required on the
application, requires proof of the individual's identity, and requires
verification of representations made by the individual. The FAA has
crafted the rule using existing industry procedures and practices where
possible to avoid creating unnecessary paperwork burdens. The
individual applying for unescorted access privileges must complete an
application form that includes: (1) the individual's full name, as well
as any aliases or nicknames; (2) the dates, names, phone numbers, and
addresses of the individual's previous employers for the last 10 years,
with explanations for any gaps in employment of more than 12 months;
(3) a notice that the individual will be subject to an employment
history verification and possibly a criminal history records check; and
(4) a question asking if the individual has been convicted of any of
the disqualifying crimes or conditions during the previous 10 years.
To assist the applicant in understanding the question on
convictions, it would be advisable for the application to include a
list of the disqualifying crimes or conditions. This rule permits
supplementing an existing application form with a separate sheet
requesting the required information and questions.
The information on the application will help identify applicants
who may have a disqualifying conviction. For example, an unexplained
gap in employment may have occurred due to incarceration for a
conviction of a disqualifying crime. The airport operator is
responsible for verifying, or accepting certification that the
information required on the employment application was verified, to the
extent necessary, to validate representations made regarding the most
recent 5-year period. This process is similar to that used for the
existing 5-year employment verification conducted by telephone, in
writing, or in person.
This rule allows the use of documentation to verify an individual's
previous employment history. However, it is important for airport
operators and air carriers to carefully examine the documentation
provided to guard against counterfeit documentation.
In cases where a previous employer has gone out of business, a
reasonable attempt to verify the period of prior employment should be
made. Pay stubs, tax records or other documentation may be used to
support the statements on the application.
Section 107.31(n) requires maintaining a record of the method used
to verify the applicant's most recent 5 years of employment and the
results obtained. Section 107.31(n) also discusses the specific
recordkeeping requirements.
Conditions Requiring a Criminal History Records Check
Four commenters address the conditions that ``trigger'' the
requirement for an FBI criminal history records check. One commenter
fully supports the triggers proposed in the SNPRM although it requests
that the triggers not be considered as limitations. This commenter
suggests that an airport operator or air carrier could elect to conduct
a complete criminal history records check if, for example, it found an
unexplained gap in employment of less than 12 months. Another commenter
questions the adequacy of a 12-month period asserting that a person
could serve less than 12 months for a disqualifying crime or could be
allowed to plead guilty to a lesser crime.
AACI and AAAE believe that two of the conditions triggering a check
are virtually identical to each other. These are: (1) the individual is
unable to support statements made or there are significant
inconsistencies between information provided on the application in
response to questions required by the rule and that which is obtained
through the verification process; and (2) information becomes available
during the employment history verification indicating a possible
conviction for one of the disqualifying crimes.
FAA Response: If one or more of the conditions or ``triggers''
established by the rule is activated, a fingerprint-based check of the
criminal records maintained by the FBI must be completed prior to
determining if unescorted access authority will be granted. An airport
operator or air carrier is not permitted to establish additional
triggers for requesting a criminal check under the authority provided
by this rule.
The Act provides the statutory authority for airport operators and
air carriers to access FBI records. The Act has been implemented by
these regulations, which limit the circumstances under which the
airport operator or air carrier can get the criminal history record.
However, on its own authority, a potential employer could disqualify
someone from unescorted access authority or refuse to hire an
individual for an unexplained gap in employment of less than 12 months,
or for any other reason. Of course, these actions would have to be
[[Page 51861]]
consistent with other applicable laws. Also under its own authority, an
employer could apply the employment verification (but not the FBI
criminal history records check), to any employees, not just those
covered by this rule.
The ``triggers'' or conditions for the criminal history records
check are based on information supplied by the aviation industry on the
criteria used by some air carriers to screen job applicants. The
combination of triggers provides the appropriate conditions to trigger
the requirement for further review of the individual's background
through a criminal history records check.
Under the first trigger, an individual who is not able to
adequately account for 12 months or more of unemployment over the past
10 years in a manner that substantiates that he or she was not
incarcerated for a disqualifying crime would be subject to a criminal
history records check. Note that while there is no requirement to
verify the information in an applicant's employment history for years 6
to 10, there is an obligation to resolve periods of unemployment of
more than 12 months. Unemployment for a 12-month period or more does
not automatically trigger a check. Rather, the criminal check is
required when the period of unemployment cannot be verified through the
checking of appropriate documentation or references. For example, a gap
can be satisfactorily explained by receipts for unemployment
compensation, travel records, or other information providing sufficient
evidence of an individual's whereabouts. In instances where an
individual was self-employed, tax records, billing records, work orders
or other means can be used to support the claims made on the
application.
Second, a criminal history records check is triggered if there is
an inability to substantiate statements made, or if there are
significant inconsistencies between the information provided by the
applicant or the information obtained during the employment
verification. This requirement is intentionally defined using broad
terms to allow the airport operator and employer to determine what is
acceptable. However, if an individual's employment cannot be verified,
this is considered an inability to substantiate statements made.
Third, if information becomes available during the course of the
access investigation indicating a possible conviction for one of the
disqualifying crimes, a criminal history records check is required.
Responding to the question raised by AACI and AAAE, there is a
significant difference between finding out during the access
investigation process that information provided was not correct versus
finding information that indicates the individual may have a conviction
for a disqualifying crime. If incorrect information is provided, it
does not necessarily indicate the presence of a disqualifying
conviction that raises questions about the individual's truthfulness.
An individual's truthfulness is a key component of the access
investigation process. Lack of veracity suggest the need to investigate
further to determine if the person is trying to conceal a conviction
for a disqualifying crime.
The purpose of the last trigger is to identify individuals that may
require a criminal check based on any positive information identified
during the access investigation. The trigger is intended to
substantiate information provided.
Section 107.31(d)--Escorted Access
Under Sec. 107.31(d) of the SNPRM, an individual who does not have
unescorted access privileges may be permitted to enter a security area
under escort. Five commenters object to allowing an individual who is
the subject of a criminal history investigation access to a secured
area even under escort because an on-going investigation indicates the
likelihood of a criminal record. Three commenters also believe that the
escort language proposed in Sec. 107.31(d) of SNPRM is inconsistent
with the FAA's policy in Sec. 107.14.
FAA Response: This rule requires individuals who have not been
authorized to have unescorted access authority to be under escort, as
defined in Sec. 107.1(b)(3), while the SIDA. The employer retains the
option of completing the access investigation prior to hiring an
individual needing unescorted access privileges rather than providing
an escort while the investigation is pending. The primary means of
determining an individual's eligibility for unescorted access is the
access investigation, including a 5-year employment history
verification, which normally takes from 5 to 10 days to complete. Thus,
escorting is not necessary for most individuals while undergoing the
check because the applicants would not be employed in a position whose
utility is predicated on unescorted access until completion of the
employment history verification.
The primary reason for security access under this rule is for
individuals awaiting a criminal history records check.
Escorted access is permissible while in the security sensitive area
even though a criminal history records check has been triggered. A
criminal history records check may take from 30 to 90 days to complete;
escorted access is allowable when the employment history verification
triggers one of the conditions requiring a criminal check. There is
nothing in the rule language that requires an airport operator to
provide escorted access into a SIDA to an individual undergoing a
criminal history records check.
Under the FAA's policy on Sec. 107.14(a) access controls, an
individual with Sec. 107.14(a) access privileges may not be escorted
through an access point meeting the requirements of Sec. 107.14. Each
person with Sec. 107.14(a) access must be subjected to the access
control system. Because Sec. 107.31(d) is applicable only to
individuals not authorized for unescorted access, the escort language
in this section is consistent with the FAA's policy on Sec. 107.14.
Section 107.31(e)--Exceptions to the Investigation Requirements
Six commenters respond to the proposed exceptions from the
employment investigation included in the SNPRM. The exceptions included
Federal, State, and local government employees who as a condition of
employment have been subject to an employment investigation; crew
members of foreign air carriers covered by alternate security
arrangements; individuals who have been continuously employed in a
position requiring unescorted access by another airport operator,
tenant, or air carrier; and individuals who have been authorized access
to the U.S. Customs Service security area of an airport.
Under this rule, certain categories of individuals are excluded
from the access investigation requirement. The FAA expects each airport
operator to develop the procedures it uses to implement this section
and, where appropriate, issue the individual identification media
indicating authorization for unescorted access privileges.
Government Employees
Two commenters request selective application of the exception for
Federal, State, and local government employees because employment
verification by different entities may not be as stringent as that
proposed in the SNPRM. The commenters also raise concerns over the
issue of Federal and local law enforcement officers observing the
airport's access rules and requirements. Another commenter wants to
ensure that the final rule does not alter the
[[Page 51862]]
access authority of FAA Safety Inspectors using Form 8000-39.
FAA Response: This rule adopts the language proposed in the SNPRM
that no additional investigation is required for Federal, state, and
local government employees who have been subjected to an employment
investigation by their respective agencies. Typically, the government
employer subjects applicants to an employment investigation that is at
least equivalent to that proposed in this rule. For example, both
Standard Form 171 and Optional Form 306 requires Federal applicants to
disclose convictions, and the Office of Personnel Management, where
appropriate, conducts a criminal history records check. The rule also
provides an option to except state and local governments. This
exception will reduce the cost and burden of implementing this rule,
while maintaining an effective level of security. Airport operators
should work with representatives from the Federal, state and local
government agencies to resolve the type of biographical information
needed to receive the identification media.
With regard to using Form 8000-39, this rule will not have any
effect. Form 8000-39 will continue to authorize the FAA Inspectors to
be present in an air operations areas to conduct short term duties
associated with their safety related responsibilities.
Foreign Air Carrier Employees
Five commenters address the application of the employment
investigation to employees of foreign air carriers. ATA believes the
alternate security arrangement for foreign air carrier flightcrew
members included in the SNPRM creates ``serious competitive imbalances
between U.S. and foreign carriers. . . .'' ATA implies that the
advantage would be to the foreign carriers.
ATAC states that it does not object to the requirement to conduct
employment investigations for individuals employed by Canadian carriers
in the U.S. applying for unescorted access. However, ATAC contends that
the alternative program for transient air crews is unnecessary because
Canadian carriers already subject their air crews to a ``criminal/
subversive/financial security check'' before a Transport Canada Airside
Restricted Area Pass to operate from Canadian airports is granted. ATAC
argues that this security check exceeds the employment investigation
requirement in the SNPRM and that the FAA should, therefore, allow
Canadian air crews unrestricted access in U.S. airports or at least to
areas and offices necessary for operational functions.
A foreign air carrier raises several concerns. The first is related
to section 105(a) of the Act which states: ``Nothing in this subsection
shall be construed as requiring investigations or record checks where
such investigations or record checks are prohibited by applicable laws
of a foreign government.''
This commenter states that the investigation of employees hired in
another country and assigned to duty in the U.S. could require an
investigation of records in some other country where privacy laws
prohibit such an investigation. The commenter recommends addressing
this conflict in the rule by stating that such investigations be
performed only to the extent permitted by law in the foreign country.
This foreign air carrier requests that the alternate security
procedures be expanded to include all crew members and to areas beyond
the footprint of the aircraft. (The preamble to the SNPRM explained an
example of an alternate system as language in the airport security
program permitting a foreign air carrier flightcrew member to have
unescorted access or movement limited to the footprint of their
aircraft.) The commenter asks that the FAA's final rule explicitly
require airport operators to consult with foreign air carriers to
identify areas to which crew members need access using the alternate
security arrangement.
This carrier also suggests that the SNPRM be revised to allow
foreign air carriers to use temporary personnel without performing an
employment investigation. According to the commenter, these personnel
could be subject to alternate security arrangements, specified in an
airport operator security program, restricting access of such personnel
to the areas necessary for performance of their jobs. The carrier
contends that the revision is needed because foreign air carriers often
require services of special relief personnel at particular airports for
brief periods. The commenter believes that temporary duty assignments
are vital to foreign air carriers, which have significantly fewer
permanent personnel based in the U.S. than do domestic carriers.
Therefore, an employment investigation of such employees is not
feasible because it would counteract the flexibility needed to quickly
hire temporary employees for unanticipated increases in workload.
FAA Response: This rule adopts the proposal outlined in the SNPRM,
with one modification for foreign air carrier employees. The Act, and
hence this rule, apply only to U.S. airports. Therefore, under this
rule, foreign nationals and U.S. citizens working in the U.S. for a
foreign air carrier will be subject to an access investigation for
unescorted access privileges in a manner similar to non-air-carrier
airport tenants. While the airport operator is responsible for ensuring
that the investigation is completed, the foreign air carrier could
perform the employment history verification as it currently does at
most airports.
This rule allows an airport operator to implement an alternate
security arrangement in its approved airport security program for
foreign air carrier crew members. The final rule uses the broader term
``crewmember'' rather than ``flightcrew member'' as proposed in the
SNPRM. In accordance with present FAA policy on ramp movement, however,
the alternate arrangement would be limited to foreign flightcrew
members (i.e., captain, second-in-command, flight engineer, or company
check pilot) in the immediate vicinity of the aircraft to which they
are assigned. The FAA is willing to consider the merits of including
cabin crew and expanding the scope of ramp movement for foreign air
carrier crew members on a case-by-case basis. Any alternate
arrangements should be developed with and coordinated through the
airport operator.
Responding to the concerns raised by ATA over the proposed
authority to permit alternate arrangements for foreign crew members,
the FAA has determined that it is reasonable from a security
standpoint, and consistent with international practices, to permit
limited access (around the assigned aircraft). Failure to provide
alternate procedures for foreign air carrier crews could result in the
adoption of additional requirements for investigations by foreign
countries for U.S. air carrier personnel. There are significant
operational restrictions associated with using the alternate
arrangement that outweigh any associated financial advantages that may
accrue to a foreign air carrier. In addition, there is a very low
probability of detecting disqualifying convictions for a foreign
national based outside the U.S. through an investigation of FBI records
because those records normally include only arrests and convictions
occurring in the U.S.
This rule does not specifically allow for the acceptance of the
Transport Canada Airside Restricted Area Pass as meeting the rule's
requirement. However, the required access investigation is more easily
[[Page 51863]]
accomplished for Canadian flightcrew members as a result of that
country's program. The approach of the Canadian system, or similar
systems in use by other countries, could result in the facilitation of
using documentary evidence of employment verification.
The FAA agrees that the Act limits employment investigations to the
extent allowable by the law in the foreign country. However, if the
employment history verification or other aspects of the access
investigation could not be completed as a result of another country's
law, this would trigger a need to conduct the criminal history records
check.
The problem of temporary employees is not specific or limited to
foreign carriers. This rule would apply to any individual applying for
unescorted access privileges. Considering the short period of time it
takes to perform the employment history verification portion of the
access investigation (which would authorize most individuals for
unescorted access authority), the FAA contends this is not an
unreasonable requirement; moreover, if the assignment is of short
duration, escorting may be the simplest solution.
Transfer of Privilege
Two commenters believe that an individual who has been continuously
employed by an air carrier, airport operator, or non-air-carrier tenant
should be authorized unescorted access without having to be
continuously employed in a position requiring unescorted access.
Another commenter recommends that the FAA implement a uniform process
for accepting transfers of individuals, so that there will be
nationwide consistency in applying this provision. ATA expresses
concern that the authority to grant unescorted access privileges to an
individual transferring from one air carrier to another should be the
exclusive responsibility of the air carrier. AACI and AAAE also
question whether individuals transferring their authority for
unescorted access must receive SIDA training at the new location.
FAA Response: This final rule adopts the proposal included in the
SNPRM that provides an exception to the access investigation
requirements for individuals who have already been subject to one.
However, this rule retains the requirement that an individual
transferring unescorted access privileges must have been continuously
employed in a position requiring unescorted access since first being
authorized unescorted SIDA access. The requirement to be continuously
authorized should not present a burden for companies transferring
individuals in positions within a company.
The rule does not attempt to establish uniform procedures for
accepting transfers; rather, the rule sets the minimum requirement for
continuous employment in a position with unescorted access privileges.
The FAA expects the airport operator and the air carrier to cooperate
in determining the process for an individual transferring from one
carrier to another.
This rule does not affect the regulatory requirement for SIDA
training. Under Sec. 107.25 and associated FAA policy, individuals who
have been subject to SIDA training who subsequently transfer their
unescorted access authority must receive site-specific SIDA training at
the new airport.
Individuals Subject To Investigation By Customs
One commenter suggests that the FAA coordinate with the U.S.
Customs Service on its pending access rule for Customs Service security
areas of an airport. The commenter's concerns focus on the effect on
operations, costs, and possible duplication of the two rules.
FAA Response: This rule permits an airport operator to accept the
background checks performed by the U.S. Customs Service to meet the
FAA's access investigation requirement. Accepting the background
investigation by Customs avoids a redundant check, while providing an
equivalent or higher level of security for individuals with unescorted
access. Because the Customs check is more extensive (it includes
misdemeanor theft convictions) than that contained in this final rule,
failure to obtain access authority to the Customs area would not
preclude an individual from obtaining unescorted access to the SIDA,
but would require the individual to be subjected to an access
investigation under this rule.
Section 107.31(f)--Investigations by Air Carriers and Airport Tenants
Eight commenters address issues concerning the airport operator's
acceptance of air carrier employment investigations and non-air carrier
tenants' employment history verifications.
ATA notes that in the SNPRM preamble an airport operator is given
the latitude to expand the scope of the employment history verification
to cover areas beyond that required under the proposal. ATA urges the
FAA to limit an airport operator's authority to impose additional
verification requirements on air carriers. It recommends that the final
rule clearly state that the air carrier is exclusively responsible only
for fulfilling the employment investigation requirements of
Sec. 108.33.
ATA and RAA express concern that the SNPRM preamble explanation of
Sec. 107.31(F) allows an airport operator discretion to accept
certification from an air carrier. These commenters recommend that the
process be mandatory thus requiring the airport operator to accept
their checks. The carriers have concerns that airport operators may
require employment investigations beyond that necessary to meet the
regulatory requirement.
One commenter states that an airport operator should be able to
rely on certification by any tenant employer for the employment
verification. Another commenter believes that the authority to certify
employees should extend to part 129 carriers who operate in accordance
with an exclusive area agreement and to indirect air carriers subject
to part 109.
Three commenters oppose the requirement that the airport operator
be responsible for the criminal history records check of all airport
tenants other than U.S. air carriers and two commenters support this
requirement. One commenter argues that the results of any criminal
investigation would be most beneficial to the direct employer, as would
information concerning arrests with no disposition. One commenter
opposes any delegation to air carriers of the responsibility for
criminal history records checks of their contractors because many of
these contractors serve more than one air carrier. According to this
commenter, conducting criminal history records checks on contractors
should be the responsibility of the airport operator.
FAA Response: This final rule adopts the procedures proposed in the
SNPRM for accepting air carrier access investigations and non-air-
carrier tenant employment history verifications. Regarding the
expansion of the employment history verification requirements, this
rule establishes the guidelines for an acceptable verification. Each
airport operator will specify these requirements in its security
program subject to FAA approval. The FAA will limit approval to the
employment history verification requirements outlined in this rule.
Under Sec. 108.33, air carriers perform the access investigation
for their employees. Therefore, it is logical that an airport operator
would accept the air carrier's investigation without placing any
additional requirements on the carrier. An airport operator's receipt
of
[[Page 51864]]
the air carrier's certification satisfies its regulatory obligation.
The airport operator may accept a written statement that the employment
history verification and, where appropriate, the criminal history
records check were performed as part of the process of an air carrier
issuing identification credentials to its employees. If a specific air
carrier employee or its contractor employee is receiving airport-issued
identification, the airport operator must receive certification for
each employee prior to issuing an identification credential. The
certification should include a statement that the investigation was
conducted in accordance with Sec. 108.33 and provide the name(s) of the
individuals requiring the unescorted access authority credential.
However, the air carrier should retain the specific documentation
supporting the access investigation.
The rule also includes a provision permitting an airport operator
to accept written certification from airport tenants that they have
reviewed the applicant's 10-year employment history and verified the
most recent 5 years of that history. Again, the airport tenant should
retain the specific documentation supporting this certification.
Pursuant to the Act, only airport operators and air carriers can
request a criminal history records check, although the costs of such
checks will normally be borne by the employer. Thus, the airport
operator must process criminal history records checks for all airport
tenants other than U.S. air carriers. However, the airport operator is
responsible only for the unescorted access privilege determination.
Employment-related decisions such as hiring and firing, and an
individual's status while a criminal history records check is pending,
rest with the airport tenant.
For purposes of this rule, non-air-carrier tenants include airline
food service companies, fixed base operators, foreign air carriers, and
indirect air carriers subject to part 109 whose employees receive
airport identification.
Section 107.31(g)--Appointing Contact
Six commenters respond to the issue of the airport operator
appointing a person who will be responsible for reviewing the results
of the employment investigation, determining an individual's
eligibility for unescorted access and serving as the liaison if the
individual disputes the results of a criminal check. As proposed in the
SNPRM, the appointed person could delegate the day-to-day duties, but
would serve as the FAA's point of contact with the airport for purposes
of monitoring compliance with the employment investigation requirement.
In the SNPRM, the FAA also solicited comments on whether it should
require the contact to be the airport security coordinator (ASC). Five
commenters acknowledge that the ASC would be the contact, but believe
the FAA should not require or specify the position.
FAA Response: This final rule requires the airport operator to
designate the ASC required under Sec. 107.29 as the contact for access
investigations. The ASC can delegate the duties while continuing to
serve as the FAA's point of contact with the airport for purposes of
monitoring compliance with this rule. This is consistent with the
requirements of Sec. 107.29 that the ASC serve as the airport
operator's primary contact for security-related activities and
communications with the FAA.
The ASC, or designee, is responsible for reviewing the results of
the access investigation and determining an individual's eligibility
for unescorted access privileges. The ASC also serves as the liaison
when the individual disputes the results of the criminal history
records check that revealed information that would disqualify the
person from unescorted access.
Section 107.31(h)--Individual Notification
The FAA received no comments on this section.
Note: An individual covered by this rule must be notified of the
need for a criminal history records check prior to commencing the
check. Because the FAA will serve as the entity to process the
criminal history records check required by this rule, this section
of the final rule is modified from that proposed in the SNPRM by
removing the language related to designating an outside entity.
Section 107.31(i)--Fingerprint Processing
The Act provides the FAA Administrator, in consultation with the
Attorney General, the authority to designate persons to obtain and
transmit fingerprints, and receive the results of a criminal history
records check. In the SNPRM, the FAA proposed allowing airport
operators and air carriers to directly contact the FBI or use an
outside entity to request and process the criminal history records
checks. The Department of Justice has agreed that airport operators and
air carriers may access the criminal records system. The FBI indicates
concerns about the FAA's SNPRM proposal to have multiple entities
request the checks. The FBI recommends that the FAA serve as the
central processor, suggesting the use of a system similar to that of
the Nuclear Regulatory Commission (NRC). The NRC serves as the
processor of FBI criminal history records checks for the nuclear
industry.
Nine comments address the issue of having a centralized processor
or ``clearing house'' batch and process the FBI criminal history
records check requests. Many of the commenters note that the proposed
language in the SNPRM would result in far fewer criminal history checks
being conducted (compared to the NPRM) and question whether a non-
governmental clearing house is feasible for so few requests. As an
alternative, they recommend that the FAA serve as the processor.
Three commenters focus on the related issue of screening criminal
history records check results. RAA supports the concept in the SNPRM
that allows the airport operator and air carriers to review an
individual's complete record. Two commenters state that a complete FBI
record should not be sent to the airport operator or air carrier;
rather, the records should be screened in some manner to determine
whether a disqualifying conviction occurred and only that information
provided. These commenters believe there is a significant privacy issue
involved in releasing an entire record. NATA believes that the FAA
should check the records and report any disqualifying convictions to
the airport operator. AOPA suggests developing a reply form for the
airport operator to submit along with the criminal history records
check card. AOPA recommends that the FBI could use this form to return
a response to the airport of ``qualified or disqualified'' for
unescorted access privileges. AOPA also states that because the FAA is
proposing to mandate these criminal checks, it must take an active role
in protecting the rights of individuals affected by this rule and
institute strict procedures to protect sensitive personal information.
Seven commenters express concerns over the authority needed by
airport operators and air carriers to gain access to the FBI's criminal
history record database. Another commenter suggests that the FAA obtain
access authority to the National Crime Information Center (NCIC)
automated database to allow for a ``name check'' of individuals
applying for unescorted access authority.
FAA Response: The FAA has consulted with the Attorney General, as
required by the Act, and has obtained the Department of Justice's
concurrence in the following procedures. The FAA is following the
recommendations made by the commenters, including the FBI, and will
serve as the central processor for the criminal history records check
[[Page 51865]]
requests submitted to the FAA by airport operators and air carriers.
The FAA will serve as the clearinghouse, in a manner similar to the NRC
and will ensure fingerprint cards are forwarded to the FBI in a timely
and cost effective manner. A $24.00 fee will enable the FAA to recover
its cost of processing and obtaining the FBI records. The FAA will
charge the same $24.00 user fee currently levied by FBI on the banking,
securities, commodities futures trading industries and the NRC. The fee
is subject to increase without prior notice upon determination by the
FBI. Parties subject to this rule will be notified of fee increases by
amendments to this rule in the future.
Upon completion of the FBI records check, the complete FBI record
will be forwarded to the requesting entity. The regulation places
specific limits on the use of the information contained in the criminal
history records check. This issue is addressed in the preamble
discussion of Sec. 107.31(m).
The FAA has researched the possibility of using the NCIC system to
allow airport operators and air carriers an alternative method for
obtaining criminal history information for individuals applying for the
privilege of unescorted access. As stated in the Notice of Public
Meetings, and as discussed at the public meetings held on the initial
notice, under published policy established by the NCIC's Advisory
Policy Board, the NCIC is not available to check the records of
applicants for employment in aviation related industries. In addition,
checking an individual's name and other identifying information does
not provide the same level of positive identification that derives from
the use of a check based on an individual's fingerprints.
This final rule includes procedures for collecting fingerprints and
requires that one set of legible fingerprints be taken on a card
acceptable to the FBI (i.e., Federal Document 258). The airport
operator may choose to have the airport law enforcement officers take
the fingerprints. The FAA also requires verifying the individual's
identity when taking his/her fingerprints. The individual must present
two forms of identification, one of which must bear the individual's
photograph. A current driver's license, military identification, or
passport are examples of acceptable photographic identification. In
addition, the fingerprint cards must be handled and shipped in a manner
that protects the privacy of the individual.
Airport operators will send the fingerprint cards to the Federal
Aviation Administration, 800 Independence Ave. SW., Washington, DC
20591 (Attn: ACO-310, Access Processing). A corporate check, certified
check, cashier's check or money order made payable to the ``U.S. FAA''
for $24.00 per card must accompany the request.
The FAA will verify that the information required on the
fingerprint cards is complete and forward the cards for processing.
After the FBI completes the search of its index system, the FAA will
receive the results and, in turn, will forward the results to the
airport operator. Under this system, the airport operator will receive
complete results of the check.
Section 107.31(j)--Making the Access Determination
Six commenters raise concerns over the airport operator or the air
carrier being responsible for resolving any arrests for disqualifying
crimes that have no disposition listed on the FBI criminal history
records check result. ATA and RAA also suggest that the individual
seeking employment should be responsible for furnishing any required
disposition documentation.
FAA Response: This final rule requires the airport operator to
ascertain the disposition of arrests for any of the enumerated offenses
when no disposition has been recorded in the FBI's records, e.g., the
case is pending or the FBI has no record. This task would be conducted
with the affected individual and the jurisdiction where the arrest took
place in order to determine whether a disposition has been recorded in
that jurisdiction but not forwarded to the FBI. While the investigation
will require assistance from the individual, it is the responsibility
of the airport operator or the air carrier to complete the
investigation. In determining whether to grant unescorted access to an
individual with an arrest for one of the disqualifying crimes with no
disposition, the airport operator should weigh all relevant information
available on the individual, including the results of the access
investigation.
Section 107.31(k)--Availability and Correction of FBI Records and
Notification of Disqualification
Two commenters state that allowing applicants to challenge the
accuracy of the FBI record will require involvement by the airport
operator in a possibly lengthy and expensive process.
FAA Response: The Act requires that individuals have the right to
challenge the accuracy of their criminal history record. While such a
challenge may be a time consuming process, the FAA has no discretion to
eliminate this right. This rule does require the individual to notify
the airport operator or its designee within 30 days of receipt of the
record of his or her intent to correct any information believed to be
inaccurate. Because the FBI maintains the records and has established
procedures to address possible inaccuracies, it is appropriate to
forward a copy of any requests for correction to the FBI. However, the
FBI prefers that the actual request be made by the individual directly
to the agency (i.e., federal, state or local jurisdiction) that
supplied the questioned criminal history information to the FBI.
When taking the individual's fingerprints, the airport operator
must notify the individual that he or she will be provided, upon
written request, a copy of the results of the FBI criminal history
records check prior to rendering the access decision.
If the airport operator is not notified by the individual within
the 30-day period that he or she intends to dispute the results, the
airport operator may make the final access decision. The airport
operator is neither obligated to provide the individual with an escort
before the correction (if any) is made, nor is the employer obligated
to hire the applicant after the record is corrected. However, after
being informed that the disqualifying information has been corrected,
the airport operator would have to obtain a copy of the revised FBI
record before the individual could be authorized for unescorted access.
If an individual is disqualified for unescorted access privileges
based on the findings of the criminal history record check, the
individual must be notified that such a determination has been made.
Section 107.31(1)--Individual Accountability
Two commenters address the issue requiring an individual with
unescorted access authority to report any disqualifying convictions
occurring after the completion of the employment investigation. One
commenter concurs with the decision not to require a recurrent
investigation and another states that the SNPRM did not adequately
address the procedures that would apply in these cases.
FAA Response: This final rule adopts the ``self-disclosure''
provision included in the SNPRM. Any person holding unescorted access
authority who is convicted of any of the disqualifying crimes after
January 31, 1995, must surrender the identification media to the issuer
within 24 hours of learning of the conviction. This final rule does not
provide additional guidance on this
[[Page 51866]]
requirement. However, the FAA expects that the regulated parties will
develop local procedures to implement this provision. In such cases,
the employer is likely to be aware of the circumstances and take
immediate action to revoke the access authority.
Any individual failing to report a disqualifying conviction or to
surrender his or her SIDA identification credential issued under this
section is subject to possible FAA enforcement action, including civil
penalty liability.
Section 107.31(m)--Limits on Dissemination of Results
The FAA received no comments on this section.
Note: As required by the Act, this rule also includes limits on
the dissemination of the criminal history information. The FAA
limits distribution of such information to: (1) the individual to
whom the record pertains or someone authorized by that person; (2)
the airport operator; and (3) the individuals designated by the
Administrator, e.g., FAA special agents.
Section 107.31(n)--Recordkeeping
Six commenters address the requirements for maintaining records.
ATA requests that the final rule clearly require maintaining only that
information necessary to satisfy the regulation requirements. ATA is
concerned that FAA inspectors may interpret the record provision as
providing discretion to require the maintenance of information beyond
that which is necessary to meet the requirements set forth in the
SNPRM.
Two airport operators express concerns over the administrative
burden of maintaining all employment history records of non-air-carrier
tenants. One commenter agrees that maintaining the criminal history
records checks is the airport operator's responsibility and that this
should not be a burden to airports because they already keep
confidential information.
FAA Response: The FAA has determined that the airport or air
carrier shall maintain a written record for individuals granted
unescorted access authority that includes specific information on the
employment history verification and the results of an FBI criminal
history records check, if conducted. The burden on airport operators to
maintain records for tenants already exists because airport operators
maintain records for individuals who are currently issued
identification media. This rule standardizes the information to be
maintained to include the results of the FBI criminal history records
check, where applicable. The airport tenant can continue to maintain
the more comprehensive record and associated paperwork of the
employment history verification.
The FAA has modified this section from that proposed in the SNPRM
to clarify that an airport operator need not maintain comprehensive
records and documentation for air carrier employees. As discussed under
Sec. 107.31(f), the record can be a certification from the air carrier
that the access investigation was performed. The airport operator would
have no further recordkeeping requirements related to air carrier
employees. Furthermore, in order to permit the destruction of FBI
criminal history records check results and minimize storage problems
for airport operators and air carriers, the recordkeeping requirements
allow for the retention of only a certification that the check was
completed and revealed no disqualifying convictions. Another minor
editorial change in this regard was the deletion of the reference to
airport tenants providing certification of criminal history records
check results since these parties are not authorized to request such
checks.
This final rule contains two recordkeeping requirements: (1) A
record indicating that the applicant's 10-year employment history has
been reviewed and the most recent 5-year employment history verified,
and (2) a copy of the results of the criminal history record check
received from the FBI or certification of same, where appropriate. The
airport operator can accept written certification from airport tenants
that the employment history was reviewed and the verification was
performed. However, the airport tenant should maintain a record of
calls made, plus a record of correspondence or any other documents
received. The tenant must make this information available to the
airport operator when requested by the FAA for inspection purposes.
For individuals subject to a criminal history records check, the
records received from the FBI must be maintained in a manner that
prevents the unauthorized dissemination of its contents.
The airport operator must maintain a written record until 180 days
after termination of the individual's authority.
Section 108.33--Employment Verification
This rule authorizes air carriers to perform the access
investigations for its employees and contractors in a manner similar to
that required under Sec. 107.31. The air carrier may provide a general
certification to an airport operator under Sec. 107.31(f) that the
access investigation was performed as part of issuing identification
credentials to its employees. When an individual air carrier employee
or its contractor employee is investigated by the carrier for receipt
of airport-issued identification media, the air carrier must provide
the airport operator with certification that the investigation was
performed for each employee.
The requirements for an air carrier performing the access
investigation are identical to those required of an airport operator.
Regulatory Evaluation Summary
Changes to Federal regulations are required to undergo several
economic analyses. First, Executive Order 12866 directs each Federal
agency to propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies
to analyze the economic effect of regulatory changes on small entities.
Third, the Office of Management and Budget directs agencies to assess
the effect of regulatory changes on international trade. With respect
to this rule, the FAA has determined that it: (1) is ``a significant
regulatory action'' as defined in section 3 (f)(4) of the Executive
Order; (2) is significant as defined in the Department of
Transportation's Regulatory Policies and Procedures; (3) will not have
a significant impact on a substantial number of small entities; and (4)
will not constitute a barrier to international trade. Since the rule is
not significant under section 3 (f)(4) of the Executive Order, a full
regulatory analysis, which includes the identification and evaluation
of cost-reducing alternatives to this rule, has not been prepared.
Instead, the agency has prepared a more concise analysis of this rule
which is presented in the following paragraphs.
The expected costs of the rule consist of two parts: (1) the cost
of enhancing the employment history verification process; and (2) the
cost of conducting a criminal history records check on applicants whose
employment verification triggers it. Employers may avoid the latter
cost by simply choosing to end the employment process for the
individual in question.
First-year costs for the industry will range from $0.5 to $1.4
million. Airports, air carriers, and other airport tenants will incur
these costs. The cost of the rule comes from the time necessary to
complete an estimated 64,000 employment history verifications by non-
air-carrier airport tenants and from an estimated 970 to 1,940 criminal
[[Page 51867]]
history records checks by all airport and air carrier employers. The
FAA estimates that, in 1995, 194,000 employees will apply for
unescorted SIDA access privilege. Between 1995 and 2004, the total cost
of the new requirements will range from $6.2 to $16.2 million. The
discounted cost ranges from $4.3 to $11.1 million.
Because aviation security requires an intricate set of interlocking
measures, the benefits ascribed to this final rule derive from
strengthening the U.S. civil aviation security network. By enhancing
the civil aviation security network, this final rule decreases the
possibility that a deadly and costly terrorist or criminal act will
occur. This final rule assures a greater measure of safety through
tighter screening of individuals applying for jobs requiring unescorted
secure area access. Specifically, this final rule reduces the civil
aviation security risk by further assuring that persons who have
committed certain crimes do not have access to airport secure areas.
The FAA has determined that the final rule provides sufficient
additional security to make it cost beneficial.
The rule will have a negligible impact on international trade.
Also, the proposed regulatory action will not have a significant
economic impact on a substantial number of small entities.
Final Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) helps to assure that
Federal regulations do not overly burden small businesses, nonprofit
organizations, and small cities. The RFA requires regulatory agencies
to review rules which may have ``a significant economic impact on a
substantial number of small entities.'' A substantial number of small
entities, defined by FAA Order 2100.14A--``Regulatory Flexibility
Criteria and Guidance,'' is more than one-third, but not less than
eleven, of the small entities subject to the existing rule. To
determine if the rule will impose a significant cost impact on these
small entities, the annualized cost imposed on them must not exceed the
annualized cost threshold established in FAA Order 2100.14A.
Small entities potentially affected by the rule are small airports,
air carriers, fixed-base operators, and catering companies. However,
many of the requirements of the rule are already standard procedures
for some of these entities; and the cost of a criminal history records
check is minimal because so few employers are expected to utilize it
for their applicants. The FAA estimates the average cost of upgrading
an employee verification is $15.00. This estimate incorporates the cost
of a criminal history records checks.
Aircraft Repair Facilities: FAA Order 2100.14A defines small
aircraft repair facilities as those with 200 employees or less. The FAA
has estimated the cost threshold for small operators to be $4,130 in
1992 dollars. To exceed this threshold, a facility would have to hire
275 employees ($4,130/$15.00) per year. This means that the facility
would have to regularly employ 786 persons (assuming a 35 percent
turnover rate: 275/.35). If a firm employed that many people, it would
be a small entity since it is over the size threshold of 200 employees.
Caterers: The FAA evaluates small caterers as aircraft repair
facilities since FAA Order 2100.14A does not define a threshold for
caterers. This order defines the criteria as 200 employees or less for
the size threshold and $4,130 for the cost threshold. Hence, like the
aircraft repair facilities, in order to exceed the cost threshold,
caterers would have to employ 786 persons, which would exceed the size
threshold of 200 employees.
In conclusion, the rule will not impose a significant impact on a
substantial number of small entities.
Federalism Implications
This rule does 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. Most airports covered by the rule are public
entities (state and local governments). However, relatively few of the
covered individuals are actually employed by the airport operator, and
most of the costs for the required investigations would be borne by the
airport tenants and air carriers. Thus, the overall impact is not
substantial within the meaning of Executive Order 12612. Therefore, in
accordance with that Executive Order, it is determined that this rule
would not have sufficient Federal implications to warrant the
preparation of a Federalism Assessment.
International Civil Aviation Organization and Joint Aviation
Regulations
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Authority Standards and Recommended
Practices to the maximum extent practicable. The FAA is not aware of
any differences that this final rule will present.
Paperwork Reduction Act
Under the requirements of the Federal Paperwork Reduction Act, the
Office of Management and Budget has approved the information collection
burden for this rule under OMB Approval Number 2120-0564. For further
information contact: The Information Requirements Division, M-34,
Office of the Secretary of Transportation, 400 Seventh Street, SW.,
Washington, D.C., 20590, (202) 366-4375 or Edward Clarke or Wayne
Brough, Office of Management and Budget, New Executive Office Building,
Room 3228, Washington D.C., 20503, (202) 395-7340.
Conclusion
For the reasons discussed in the preamble, and based on the
findings in the Regulatory Flexibility Determination and the
International Trade Impact Analysis, the FAA has determined that this
rule is a significant regulatory action under Executive Order 12866.
This rule will not have a significant economic impact on a substantial
number of small entities under the criteria of the Regulatory
Flexibility Act but is considered significant under DOT Regulatory
Policies and Procedures (44 FR 11034; February 26, 1979). The
regulatory evaluation for this rule, including a Regulatory Flexibility
Determination and International Trade Impact Analysis, has been placed
in the docket. A copy may be obtained by contacting the person
identified under FOR FURTHER INFORMATION CONTACT.
List of Subjects in 14 CFR Parts 107 and 108
Air carriers, Air Transportation, Airlines, Airplanes operator
security, Aviation safety, Security measures, Transportation, Weapons.
The Rule Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends parts 107 and 108 of the Federal Aviation
Regulations (14 CFR parts 107 and 108) as follows:
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.
2. In part 107, Sec. 107.1 paragraphs (b)(3) through (b)(5) are
redesignated as paragraphs (b)(4) through (b)(6), and
[[Page 51868]]
new paragraph (b)(3) is added to read as follows:
Sec. 107.1 Applicability and Definitions.
* * * * *
(b) * * *
(3) Escort means to accompany or supervise an individual who does
not have unescorted access authority to areas restricted for security
purposes, as identified in the airport security program, in a manner
sufficient to take action should the individual engage in activities
other than those for which the escorted access is granted. The
responsive actions can be taken by the escort or other authorized
individual.
* * * * *
3. Part 107 is amended by adding a new Sec. 107.31 to read as
follows:
Sec. 107.31 Access Investigation
(a) On or after January 31, 1996, this section applies to all
individuals seeking authorization for, or seeking authority to
authorize others to have, unescorted access privileges to the security
identification display area (SIDA) that is identified in the airport
security program as defined by Sec. 107.25.
(b) Except as provided in paragraph (e) of this section, each
airport operator must ensure that no individual is granted
authorization for, or is granted authority to authorize others to have,
unescorted access to the area identified in paragraph (a) of this
section unless:
(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 access investigation is initiated as provided in
paragraph (c) of this section; and
(2) The results of the access 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 statutes are recodified in 1994 are
listed.
(i) Forgery of certificates, false making of aircraft, and other
aircraft registration violations, 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 flightcrew 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 an aircraft, 49 U.S.C.
46505 [formerly 49 U.S.C. App 1472(l)];
(viii) Conveying false information and threats, 49 U.S.C. 49 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) The access investigation must include the following steps:
(1) The individual must complete an application form that includes:
(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
months, during the previous 10-year period;
(iii) Notification that the individual will be subject to an
employment history verification and possibly a criminal history records
check; and
(iv) Any convictions during the previous 10-year period of the
crimes listed in paragraph (b)(2) of this section.
(2) The identity of the individual must be verified through the
presentation of two forms of identification, one of which must bear the
individual's photograph.
(3) The information on the most recent 5 years of employment
history required under paragraph (c)(1)(ii) of this section must be
verified in writing, by documentation, by telephone, or in person.
(4) If one or more of the following conditions exists, the access
investigation must not be considered complete unless it includes a
check of the individual's fingerprint-based 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 or more of the following conditions
exists:
(i) The individual cannot 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 or there
are significant inconsistencies between information provided on the
application in response to questions required by paragraph (c)(1)(ii)
of this section and that obtained through the 5-year verification
process; or
(iii) Information becomes available to the airport operator during
the access investigation indicating a possible conviction for one of
the disqualifying crimes.
(d) An airport operator may permit an individual to be under escort
as defined in Sec. 107.1 in accordance with the airport security
program to the areas identified in paragraph (a) of this section.
(e) Notwithstanding the requirements of this section, an airport
operator may authorize the following individuals to have unescorted
access to the areas identified 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;
(2) Crew members of foreign air carriers covered by an alternate
security arrangement in the approved airport operator 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; and
(4) An individual who has access authority to the U.S. Customs
Service security area of the U.S. airport.
(f) An airport operator will be deemed to be in compliance with its
obligations under paragraphs (b)(1) and (b)(2) of this section, as
applicable, when it accepts certification from:
[[Page 51869]]
(1) An air carrier subject to Sec. 108.33 of this chapter that the
air carrier has complied with Sec. 108.33 (a)(1) and (a)(2) for its
employees and contractors; and
(2) An airport tenant other than a U.S. air carrier that the tenant
has complied with paragraph (b)(1) of this section for its employees.
(g) The airport operator must designate the airport security
coordinator to be responsible for:
(1) Reviewing and controlling the results of the access
investigation; and
(2) Serving as the contact to receive notification from an
individual applying for unescorted access of his or her intent to seek
correction of his or her criminal history record with the FBI.
(h) Prior to commencing the criminal history records check, the
airport operator must notify the affected individuals.
(i) The airport operator must collect and process fingerprints in
the following manner:
(1) One set of legible and classifiable fingerprints must be
recorded on fingerprint cards approved by the FBI for this purpose;
(2) The fingerprints must be obtained from the individual under
direct observation by the airport operator;
(3) The identity of the individual must be verified at the time
fingerprints are obtained. The individual must present two forms of
identification media, one of which must bear his or her photograph;
(4) The fingerprint card must be forwarded to Federal Aviation
Administration, 800 Independence Ave., S.W., Washington, D.C. 20591
(ATTN: ACO-310, Access Processing); and
(5) Fees for the processing of the criminal checks are due upon
application. Airport operators shall submit payment through corporate
check, cashier's check or money order made payable to ``U.S. FAA,'' at
the rate of $24.00 for each fingerprint card. Combined payment for
multiple applications is acceptable.
(j) In conducting the criminal history records check required by
this section, the airport operator must ascertain information on
arrests 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.
(k) The airport operator must:
(1) At the time the fingerprints are taken, notify the individual
that a copy of any criminal history record received from the FBI will
be made available if requested in writing.
(2) Prior to making a final decision to deny authorization for
unescorted access, advise the individual that the FBI criminal history
record discloses information that would disqualify him or her from
unescorted access authorization and provide each affected individual
with a copy of his or her FBI record if it has been requested. The
individual may contact the local jurisdiction responsible for the
information and the FBI to complete or correct the information
contained in the record before any final access decision is made,
subject to the following conditions:
(i) Within 30 days after being advised that the FBI criminal
history record discloses disqualifying information, the individual must
notify the airport operator, in writing, of his or her intent to
correct any information believed to be inaccurate. If no notification
is received within 30 days, the airport operator may make a final
access decision.
(ii) Upon notification by the individual that a record has been
corrected, the airport operator must obtain a copy of the revised FBI
record prior to making a final access decision.
(3) Notify an individual that a final decision has been made to
grant or deny authorization for unescorted access.
(l) Any individual authorized to have unescorted access privilege
to the areas identified in paragraph (a) of this section who is
subsequently convicted of any of the crimes listed in paragraph (b)(2)
of this section must report the conviction and surrender the SIDA
identification medium within 24 hours to the issuer.
(m) Criminal history record information provided by the FBI must 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) The airport operator; or
(3) Others designated by the Administrator.
(n) The airport must maintain a written record for each individual
until 180 days after the termination of the individual's authority for
unescorted access. The records for each individual subject to:
(1) The access investigation must include: the application, the
employment verification information obtained by the employer, the names
of those from whom the employment verification information was
obtained, the date the contact was made, or certification of same from
air carriers or airport tenants, and any other information as required
by the Assistant Administrator for Civil Aviation Security, and
(2) A criminal history records check must include the results of
the records check, or a certification by the airport operator or air
carrier that the check was completed and did not uncover a
disqualifying conviction. These records must be maintained in a manner
that protects the confidentiality of the employee, which is acceptable
to the Assistant Administrator for Civil Aviation Security.
PART 108--AIRPLANE OPERATOR SECURITY
4. 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.
5. Part 108 is amended by adding a new Sec. 108.33 to read as
follows:
Sec. 108.33 Access investigation.
(a) On or after January 31, 1996 for each employee or contractor
employee covered under a certification made to an airport operator
pursuant to Sec. 107.31(f) of this chapter, the certificate holder must
ensure that:
(1) The individual has satisfactorily undergone an employment
history review covering the past 10 years and verification of the 5
years preceding the date the access investigation is initiated as
provided in paragraph (b) of this section; and
(2) The results of the access 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 statutes are 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 flightcrew 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.
[[Page 51870]]
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. 49 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 in connection with transportation of
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.
(b) The access investigation must include the following steps:
(1) The individual must complete an application form that includes:
(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
months, during the previous 10-year period;
(iii) Notification that the individual will be subject to an
employment history verification and possibly a criminal history records
check; and
(iv) Any convictions during the previous 10-year period for the
crimes listed in paragraph (a)(2) of this section.
(2) The identity of the individual must be verified through the
presentation of two forms of identification, one of which must bear the
individual's photograph.
(3) The information on the most recent 5 years of employment
history required under paragraph (b)(1)(ii) of this section must be
verified in writing, by documentation, by telephone, or in person.
(4) If one or more of the following conditions exists, the access
investigation must not be considered complete unless it includes a
check of the individual's fingerprint-based 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 or more of the following conditions
exists:
(i) The individual cannot 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 or there
are significant inconsistencies between information provided on the
application in response to questions required by paragraph (b)(1)(ii)
of this section and that which is obtained through the 5-year
verification process; or
(iii) Information becomes available to the certificate holder
during the access investigation indicating a possible conviction for
one of the disqualifying crimes.
(c) The certificate holder must designate an individual to be
responsible for:
(1) Reviewing and controlling the results of the access
investigation; and
(2) Serving as the contact to receive notification from an
individual applying for unescorted access of his or her intent to seek
correction of his or her criminal history record with the FBI.
(d) Prior to commencing the criminal history records check, the
certificate holder must notify the affected individuals.
(e) The certificate holder must collect and process fingerprints in
the following manner:
(1) One set of legible and classifiable fingerprints must be
recorded on fingerprint cards approved by the FBI;
(2) The fingerprints must be obtained from the individual under
direct observation by the certificate holder;
(3) The identity of the individual must be verified at the time
fingerprints are obtained. The individual must present two forms of
identification media, one of which must bear his or her photograph; and
(4) The fingerprint card must be forwarded to Federal Aviation
Administration, 800 Independence Ave, S.W., Washington, D.C. 20591
(ATTN: ACO-310, Access Processing) and
(5) Fees for the processing of the criminal 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
rate of $24.00 for each fingerprint card. Combined payment for multiple
applications is acceptable.
(f) In conducting the criminal history records check required by
this section, the certificate holder must investigate arrest
information for the crimes listed in paragraph (a)(2) of this section
for which no disposition has been recorded to make a determination of
the outcome of the arrest.
(g) The certificate holder must:
(1) At the time the fingerprints are taken, notify the individual
that a copy of the criminal history record received from the FBI will
be made available if requested in writing.
(2) Prior to making a final decision to deny authorization for
unescorted access, advise the individual that the FBI criminal history
record discloses information that would disqualify him or her from
unescorted access authorization and provide each affected individual
with a copy of his or her FBI record. The individual may contact the
local jurisdiction responsible for the information and the FBI to
complete or correct the information contained in the record before any
final access decision is made, subject to the following conditions:
(i) Within 30 days after being advised that the criminal history
record received from the FBI discloses disqualifying information, the
individual must notify the certificate holder, in writing, of his or
her intent to correct any information believed to be inaccurate. If no
notification is received within 30 days, the certificate holder may
make a final access decision.
(ii) Upon notification by the individual that the record has been
corrected, the certificate holder must obtain a copy of the revised
record from the FBI prior to making a final access decision.
(3) Notify an individual that a final decision has been made to
grant or deny authority for unescorted access.
(h) Any individual authorized to have unescorted access privilege
to areas identified in Sec. 107.31(a) of this chapter, who is
subsequently convicted of any of the crimes listed in paragraph (a)(2)
of this section, must report the conviction and surrender the SIDA
identification medium within 24 hours to the issuer.
(i) Criminal history record information provided by the FBI must 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:
[[Page 51871]]
(1) The individual to whom the record pertains or that individual's
authorized representative;
(2) The certificate holder; or
(3) Others designated by the Administrator.
(j) The certificate holder must maintain a written record that the
investigation was conducted for the individual until 180 days after the
termination of the individual's authority for unescorted access. The
record for individuals subject to:
(1) The access investigation must include the application, the
employment verification information obtained by the employer, the names
of those from whom the employment verification information was
obtained, the date the contact was made, and any other information as
required by the Assistant Administrator for Civil Aviation Security,
and
(2) A criminal history records check must include the results of
the records check or certification by the air carrier that a check was
completed and did not uncover a disqualifying conviction. These records
must be maintained in a manner that protects the confidentiality of the
employee, which is acceptable to the Assistant Administrator for Civil
Aviation Security.
Issued in Washington, DC, on September 26, 1995.
David R. Hinson,
Administrator.
[FR Doc. 95-24546 Filed 9-28-95; 3:10 pm]
BILLING CODE 4910-13-M
