[Federal Register Volume 62, Number 51 (Monday, March 17, 1997)]
[Proposed Rules]
[Pages 12724-12727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6531]
[[Page 12723]]
_______________________________________________________________________
Part III
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
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14 CFR 108
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Certification of Screening Companies; Proposed Rule
Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 /
Proposed Rules
[[Page 12724]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 108
[Docket No. 28852; Notice No. 97-3]
RIN 2120-AG31
Certification of Screening Companies
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: The FAA seeks public comment on issues relating to the
certification of screening companies (other than air carriers) by the
FAA, and other enhancements to the screening by air carriers of
passengers and property that will be carried in the cabin of an
aircraft, and of checked baggage. This advance notice responds to a
recommendation made by the White House Commission on Aviation Safety
and Security, and to a requirement in the Federal Aviation
Reauthorization Act of 1996. It is intended to improve the screening of
passengers, property, and baggage. After reviewing any comments made in
response to this advance notice, the FAA will issue a notice of
proposed rulemaking with specific regulatory proposals.
DATES: Comments must be received on or before May 1, 1997.
ADDRESSES: Comments on this notice may be delivered or mailed, in
triplicate, to: Federal Aviation Administration, Office of the Chief
Counsel, Attn: Rules Docket (AGC-200), Docket No. 28852, Room 915G, 800
Independence Avenue, SW., Washington, DC 20591. Comments submitted must
be marked: ``Docket No. 28852.'' Comments may also be sent
electronically to the following internet address: 9-nprm-
cmtsfaa.dot.gov. Comments may be examined in Room 915G on weekdays,
except Federal holidays, between 8:30 am. and 5:00 p.m.
FOR FURTHER INFORMATION CONTACT:
Penny J. Anderson, Office of Civil Aviation Security Policy and
Planning, ACP-100, Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591, telephone (202) 267-5183.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to submit comments by providing such
written data, views, or arguments as they may desire. Comments relating
to the environmental, energy, federalism, or economic impact are also
invited. Substantive comments should be accompanied by cost estimates.
Comments must identify the regulatory docket or notice number and be
submitted in triplicate to the Rules Docket address specified above.
Except as noted below, all comments received, as well as a report
summarizing each substantive public contact with FAA personnel on this
rulemaking, will be filed in the docket. The docket is available for
public inspection before and after the comment closing date.
The Associate Administrator for Civil Aviation Security has
determined that air carrier security programs required by part 108
contain sensitive security information. As such, the availability of
information pertaining to air carrier security programs is governed by
14 CFR part 191 and 14 CFR 108.7(b) (4) and (5). Air carriers who wish
to comment on this notice should be cautious not to include information
contained in the security program in their comments.
All comments received on or before the closing date will be
considered by the Administrator before taking action on this proposed
rulemaking. Late-filed comments will be considered to the extent
practicable.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. 28852.'' The postcard will be date
stamped and mailed to the commenter.
Availability of ANPRMs
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339), the Federal Register's electronic bulletin board service
(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory
Committee Bulletin Board service (telephone: 202-267-5948).
Internet users may reach the FAA's web page at http://www.faa.gov
or the Federal Register's webpage at http://www.access.gpo.gov/su__docs
for access to recently published rulemaking documents.
Any person may obtain a copy of this ANPRM by submitting a request
to the Federal Aviation Administration, Office of Rulemaking, ARM-1,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-9680. Communications must identify the notice number or docket
number of this ANPRM.
Persons interesting in being placed on the mailing list for future
ANPRMs or NPRMs should request from the above office a copy of Advisory
Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System,
that describes the application procedure.
Background
Following the tragic crash of TWA 800 on July 17, 1996, the
President created the White House Commission on Aviation Safety and
Security (the Commission). The Commission issued an initial Report on
September 9, 1996, with 20 specific recommendations for improving
security, one of which was the development of uniform performance
standards for the selection, training, certification, and
recertification of screening companies and their employees.
On October 9, 1996, the President signed the Federal Aviation
Reauthorization Act of 1996, Pub.L. 104-264 (the Act). Section 302
provides:
The Administrator of the Federal Aviation Administration is
directed to certify companies providing security screening and to
improve the training and testing of security screeners through
development of uniform performance standards for providing security
screening services.
The rulemaking initiated by this advance notice is intended to
provide an initial response to these mandates. It requests comments on
improving the screening system and on the certification of screening
companies.
Rulemaking Process
This ANPRM does not propose specific regulatory changes. Rather, it
requests comments and suggestions as to what regulatory changes should
be made to carry out the Act and the Commission's recommendations.
After review of all of the comments submitted in response to his ANPRM
the FAA will issue a notice of proposed rulemaking (NPRM), proposing
specific regulations. Interested persons will have the opportunity to
comment on those proposed changes before a final rule is adopted.
History and Current Requirements
Title 49, United Stated Code, section 44901, requires the FAA to
prescribe regulations requiring air carriers to screen all passengers
and property that will be carried in a cabin of an aircraft in air
transportation or intrastate air transportation. This screening must be
done before the aircraft is boarded, using weapon-detecting facilities
or
[[Page 12725]]
procedures used or operated by an employee or agent of an air carrier,
intrastate air carrier, or foreign air carrier.
Part 108 of Title 14, Code of Federal Regulations, contains rules
in Secs. 108.9, 108.17, and 108.20 for the conduct of screening
operations. These rules, which are available to the general public,
provide basic standards for the screeners, equipment, and procedures to
be used. In addition, each air carrier that is required to conduct
screening has a non-public security program (issued under Secs. 108.5
and 108.7) that contains detailed requirements for screening.
Essentially all approved air carrier security programs are actually the
Air Carrier Standard Security Program (ACSSP). The ACSSP provides
identical measures for all air carriers to use in most situations.
Individual air carriers may request alternate procedures in specific
situations to allow more efficient operations, where the required level
of security can be maintained.
There are several means by which an air carrier may conduct
screening. It may use its own employees. It may contract with another
company to conduct the screening in accordance with the air carrier's
security program. It may contract with another air carrier to conduct
screening. In each case, the air carrier is required to provide
oversight to ensure that all requirements are met. For example,
Sec. 108.29 requires that the air carrier's ground security coordinator
(GSC) review security-related functions and initiate corrective action
for noncompliance, and Sec. 108.31(d) requires that the GSC conduct an
annual evaluation of each person assigned screening duties.
In addition to screening persons and property to be carried in the
cabin of an aircraft, Sec. 108.9(a) requires air carriers to prevent or
deter the carriage of any explosive or incendiary in checked baggage.
The ACSSP contains various measures to carry out this duty, including
screening of checked baggage.
The term ``screening location'' refers to any site at which the
screening of passengers, property, or baggage is conducted. A
``screening checkpoint'' is a type of screening location. Specifically,
a ``screening checkpoint'' refers to a screening location at which the
screening of passengers and property that will be carried in the cabin
of an aircraft is conducted. Another example of a specific type of
screening location would be a site at which the screening of checked
baggage is conducted.
Some screening locations are used by only one air carrier. However,
most locations are used by more than one air carrier (often referred to
as ``joint-use checkpoints''), resulting in more than one air carrier
having the regulatory responsibility to oversee the operation of the
location. The use of the ACSSP ensures that all air carriers using the
location are held to the same standards.
Foreign air carriers that operate in the United States are required
to have a security program and carry out security procedures under 14
CFR 129.25, 129.26, and 129.27. It is anticipated that foreign air
carriers will be subject to the same provisions for the use of
certificated screening companies as U.S. air carriers, and comment is
specifically invited on this.
General Discussion and Request for Comments
There are a number of issues that arise in connection with
certification of screening companies. The FAA requests comments and
suggestions on all issues related to the certification of screening
companies and the improvement of screening. The FAA will consider all
comments and suggestions. The following are issues of particular
interest:
1. Oversight by Air Carriers
There has been no change to the requirement in 49 U.S.C. 44901(a)
that screening of passengers and property that will be carried in the
cabin of an aircraft in air transportation or intrastate air
transportation be conducted by an employee or agent of an air carrier.
Further, the FAA does not anticipate any change in the air carrier's
responsibility for screening of checked baggage. Accordingly,
certificated screening companies must be agents of air carriers, and
air carriers will remain ultimately responsible for the proper
screening of passengers, property, and baggage. However, as certificate
holders, the screening companies will be responsible for carrying out
their regulatory duties to properly screen passengers, property, and
baggage. In the case of a failure to properly screen, both regulated
parties, i.e., the air carriers and the certificated screening company,
potentially bear responsibility.
This gives rise to questions about how air carriers should select a
screening company, and then oversee the operations of that screening
company, and the extent to which screening companies should be held
directly responsible for the operation of screening locations. The fact
that screening companies will have certificates will not relieve air
carriers of responsibility for screening. These questions are similar
to others that have been dealt with regarding air carrier oversight of
contractors and employees. For example, the FAA recently has emphasized
to air carriers the need for stronger oversight of certificated repair
stations performing maintenance on their aircraft. As another example,
the FAA currently requires pilots to have certificates, yet under Title
V of the Act, the air carrier must obtain extensive information on
pilots before they are hired.
The FAA anticipates that details of selecting a screening company,
and then overseeing the operations of that screening company, will be
placed in the security programs. However, the FAA requests comments as
to the general rules that should appear in part 108 regarding what
guidelines an air carrier should follow with respect to selection and
oversight of a screening company. For example, what information should
an air carrier collect prior to contracting with a screening company.
Of what should air carrier oversight of a screening company consist?
Should it include periodic inspections? Training audits? Records audit?
Screening surveillance? Unannounced, anonymous testing? Other
surveillance?
In addition to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of carrying out
oversight responsibilities.
2. Joint-Use Screening Locations
The FAA is evaluating how best to address common, or joint-use
screening locations. Currently, joint-use screening locations are
handled in a number of ways. Some locations have a managing air carrier
that has accepted responsibility for administrative functions relating
to the location, and for responsibility in the event of certain
security violations. At other checkpoints the responsibility for these
events may be spread among many air carriers.
The FAA requests comments on the best method of structuring air
carrier selection of a screening company for joint use screening
locations, and oversight of that screening company's activities. Should
there be an agreement between all affected air carriers? What form
should this agreement take? How should it be documented? How much
involvement should air carriers other than the managing air carrier
have regarding the day to day and long-term activities of the location?
3. Screening Security Program
As discussed above, there currently exist requirements for the
screening of passengers, property, and baggage to be carried aboard air
carrier aircraft, in part
[[Page 12726]]
108 and in the ACSSP. The ACSSP provides a uniform standard for
screening, which assists in having a coordinated effort when more than
one air carrier is using the same screening location. Further, the
ACSSP is made available only to those persons with an operational need
to know, not to the general public, in order to avoid unauthorized
persons from obtaining information that could be used to attempt to
defeat the security system. It is evident that large portions of the
requirements for screening by screening companies must be in a non-
public security program, just as they are for air carriers.
The FAA is considering establishing by regulation a uniform
security program for use by all air carriers and screening companies.
This screening security program would incorporate the screening
standards currently provided in the ACSSP. This screening security
program could be incorporated as part of the ACSSP (as it is now) or be
developed as a separate security program for screening companies. In
this case, all air carriers and certificated screening companies would
be subject to the same standards for conducting screening. Screening
companies would be made directly responsible for protecting the
security program from access by unauthorized persons, similar to the
requirement on air carriers under Sec. 108.7(b) (4) and (5). There
would be no confusion as to which air carrier's security program a
screening company would carry out at a given location.
The FAA requests comments on this approach, and requests
suggestions as to any other means that might be used to ensure that
uniform standards are used to perform screening, and to ensure that the
standards are protected from unauthorized use.
It has long been recognized that screener performance standards
must be measurable. Although the FAA intends to begin measuring
screener performance using the Threat Image Projection System (TIPS),
it remains open to suggestions for other methods of evaluating
performance.
In addition to substantive comments or suggestions relating to this
issue, the FAA also requests estimates of the costs of implementing and
carrying out a uniform security program.
4. Screener Training
The FAA has been working on ways to improve screener training, such
as computer-based instruction. We anticipate that the details of most
such changes will, of necessity, be placed in the ACSSP. The FAA is
also considering a requirement to incorporate into each security
program the specific curriculum to be used to train screeners. This
would require the approval of the training curriculum by the FAA.
In addition to substantive comments or suggestions relating to this
issue, the FAA requests any cost information that would assist it in
evaluating the cost impact of the commenter's suggested changes to
training methods or curriculum.
5. Qualifications and Operations of Screening Companies
The FAA is considering what qualifications companies should be
required to demonstrate before the FAA issues a screening company
certificate. The FAA requests comments on what should be the minimal
showings to qualify for a screening company certificate.
Local and National Qualifications
A screening company may carry out its functions at many different
locations throughout the country. Each location may have different
types of equipment in place to conduct screening and to train
screeners. The FAA requests comments on whether screening companies
should be qualified on a national basis, or should companies be
required to make specific showings of qualification for each location?
Aviation Screening Experience
The screening of passengers, property, and baggage at airports is a
unique task. While there are some similarities to security functions
performed in other settings (such as security at sports arenas and
other public events), there are many differences. The FAA is
considering whether a screening company should be required to have
management personnel with specialized aviation experience or training,
similar to that required for various air carrier management personnel
under Secs. 119.65 and 119.67.
Screening Equipment
Under current requirements, the equipment used for screening (such
as x-ray machines and metal detectors) must be approved by or
acceptable to the FAA. Further, the equipment must be checked or
calibrated on a specified interval, and taken out of service if it
fails to perform as required. Currently, most equipment is owned by air
carriers, and that seems likely to remain true in the future. The FAA
requests comments on the responsibility the air carriers and the
screening companies each should have for both the equipment initially
obtained to use at each location and the periodic checking and testing
of the equipment, as well as its continued use after failure.
Training Equipment
Currently training equipment generally is owned by air carriers,
and there may be different training programs in use by different air
carriers. However, certificated screening companies will be responsible
for ensuring that their screeners are properly trained. This raises the
question whether each screening company should use whatever program is
in place at each airport, or should be responsible for conducting its
own training using its own equipment. The use of different training
programs at different airports by the same screening company may be
hard to manage, and make it difficult to determine to what standard the
screening company must comply. The FAA requests comments on how
training of screeners should be accomplished. For example, should
training programs be approved for each site rather than for the
screening company as a whole? Also, how should training for use of new
equipment be addressed?
In addition to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of meeting any of the
qualifications or operational requirements described above.
6. Screeners
There is a concern that screeners should be encouraged to have a
stronger sense of professionalism. There are a number of potential ways
to accomplish this.
It has been suggested that it should be easier for screeners to
switch employment from one screening company to another (screener
mobility). Currently, when a screener wishes to switch companies, or
one company stops operating a screening location for an air carrier and
is replaced by another screening company, the first company does not
necessarily transfer the training records to the new company. The
screeners then must completely requalify for the new company. The FAA
is considering whether there should be a means for certain records to
be transferred, at the screener's request, to ease the transition.
Mobility of documentation also raises issues in regard to the
accuracy of the documents, screener rights relating to corrections to
the documents, and screening company liability in the event an
inaccurate document is transferred.
Another means of encouraging professionalism is to provide a
special recognition of the screener's successful completion of
training.
[[Page 12727]]
The FAA requests comments on ways that the regulations could
encourage a stronger sense of professionalism in screeners.
In addition to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of increasing the
professionalism of the screener position through implementation of the
measures described above and any recommendation made by the commenter.
7. Screening by Air Carriers
Some air carriers conduct screening with their own employees. They
may do so at joint-use locations, and therefore conduct screening on
behalf of other air carriers. The FAA is considering whether air
carriers that conduct screening should be subject to the same standards
as certificated screening companies. These standards would include
those issues raised in this document that identify possible screening
company requirements, such as the qualification of management and
screener training. They might also include oversight by other air
carriers for which they screen.
In addition to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of imposing the same
requirements on air carriers as those that will be imposed upon
independent screening companies.
8. New Screening Companies
There are about 70 screening companies (other than air carriers)
currently performing passenger, property, and baggage screening at U.S.
airports. We assume other companies will be formed in the future. These
new companies may have no background or experience in aviation security
screening. These screening companies will be required to have a
certificate prior to beginning screening. The FAA invites coments on
how to ensure the qualifications of a company that has no aviation
screening experience before it begins aviation screening.
The FAA is considering whether there should be a period of
provisional certification for new screening companies that have not
demonstrated an ability to screen in the aviation environment. This may
include additional measures and/or constraints upon such new companies
to ensure competence of the screening company. During this provisional
period the FAA and the air carrier could provide more monitoring of
training, and more testing and surveillance than would normally be
provided for established companies. The screening company might also be
constrained from beginning screening activities at a new screening
location unless advance approval is given by the FAA. The provisional
certificate could be limited to a specific period, after which a
successful screening company may apply for a standard screening company
certificate and be expected to meet only those provisions required of
experienced screening companies.
The FAA requests comments as to what measures or constraints, if
any, should be placed upon a new screening company. If a provisional
certificate were to be issued, for what period of time should it remian
in effect? What additional oversight requirements, if any, should be
placed upon an air carrier contracting with a new screening company?
In additon to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of provisional
certification or other possible constraints upon new screening
companies.
9. Checkpoint Operational Configuration Deficiencies
The FAA has observed that difficulties with the performance of
screening at checkpoints often are caused by a less than optimal
physical configuration of the checkpoint. For instance, a screener may
have problems reading the x-ray screen because there is a glare on the
screen. The FAA is considering clarifying the responsibility of the air
carriers and the screening companies to make sure that their
checkpoints are configured for effective screening. In some cases an
airport operator would have an interest in the correction of
operational checkpoint configuration deficiencies. The FAA requests
comments on how best to address operational checkpoint deficiencies.
In addition to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of correcting
operational checkpoint deficiencies.
10. Foreign Air Carriers
The FAA anticipates that this rule will also apply to foreign air
carriers required to screen under a security program required by 14 CFR
part 129. The FAA requests comments on the impact on foreign air
carriers operating in the United States.
In addition to substantive comments or suggestions relating to this
issue, the FAA requests estimates of the costs of imposing the same
requirements on foreign air carriers.
Issued in Washington, DC, on March 11, 1997.
Quinten T. Johnson,
Acting Director, Office of Civil Aviation Security Policy and Planning.
[FR Doc. 97-6531 Filed 3-12-97; 8:45 am]
BILLING CODE 4910-13-M
