[Federal Register Volume 62, Number 53 (Wednesday, March 19, 1997)]
[Proposed Rules]
[Pages 13262-13273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6947]
[[Page 13261]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 107 and 108
Employment History; Verification and Criminal Records Check; Proposed
Rule
Federal Register / Vol. 62, No. 53 / Wednesday, March 19, 1997 /
Proposed Rules
[[Page 13262]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 107 and 108
[Docket No. 28859; Notice No. 97-4]
RIN 2120-AG32
Employment History; Verification and Criminal Records Check.
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The FAA proposes to amend the regulations that require an
access investigation, including a fingerprint-based criminal history
record check in certain cases, for unescorted access privileges to
security areas at airports. This proposal would extend the requirement
for an access investigation (which would be renamed ``employment
background investigation'') to persons who perform checkpoint screening
functions at airports and their supervisors. The proposal also would
require airport operators and air carriers to audit employment
background investigations. The FAA proposes these changes in response
to the Federal Aviation Reauthorization Act of 1996 (Pub. L. 104-264).
This proposed rule is intended to improve the security of the airport
environment.
DATES: Comments must be received on or before May 19, 1997.
ADDRESSES: Comments on this notice may be delivered or mailed, in
triplicate, to: Federal Aviation Administration, Office of the Chief
Counsel, Attn: Rules Docket (AGC-200), Docket No. 28859 Room 915G, 800
Independence Avenue, SW., Washington, DC 20591. Comments submitted must
be marked: ``Docket No 28859.'' Comments may also be sent
electronically to the following internet address: 9-NPRM-
[email protected] Comments may be examined in Room 915G on weekdays,
except Federal holidays, between 8:30 a.m. and 5:00 p.m.
FOR FURTHER INFORMATION CONTACT:
Linda Valencia, Office of Civil Aviation Security Policy and Planning,
Civil Aviation Security Division, ACP-100, Federal Aviation
Administration, 800 Independence Avenue, SW., Washington, DC 20591,
telephone(202) 267-3413.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed rule by submitting such written data, views, or arguments as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposals in this notice are also invited. Substantive comments should
be accompanied by cost estimates. Comments must identify the regulatory
docket or notice number and be submitted in triplicate to the Rules
Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel on this rulemaking, will
be filed in the docket. The docket is available for public inspection
before and after the comment closing date.
All comments received on or before the closing date will be
considered by the Administrator before taking action on this proposed
rulemaking. Late-filed comments will be considered to the extent
practicable. The proposals contained in this notice may be changed in
light of the comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. 28859.'' The postcard will be date
stamped and mailed to the commenter.
Availability of NPRMs
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339), the Federal Register's electronic bulletin board service
(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory
Committee Bulletin Board service (telephone: 202-267-5948).
Internet users may reach the FAA's web page at http://www.faa.gov
or the Federal Register's webpage at http://www.access.gpo.gov/su__
docs for access to recently published rulemaking documents.
Any person may obtain a copy of this NPRM by submitting to request
to the Federal Aviation Administration, Office of Rulemaking, ARM-1,
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)
267-9680. Communications must identify the notice number or docket
number of this NPRM.
Persons interested in being placed on the mailing list for future
NPRM's should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, that
describes the application procedure.
History
The final rule on Unescorted Access Privilege was published in the
Federal Register on October 3, 1995 [60 FR 51854], and was responsive
to the Aviation Security Improvement Act of 1990. The rule initiated
the 10-year employment background investigation with the potential for
a Federal Bureau of Investigations (FBI) fingerprint-based criminal
history records check for those individuals who are granted unescorted
access to a security identification display area (SIDA) and those who
may authorize others to have unescorted access. (See 14 CFR section
107.25.) In that rulemaking, the FAA stated that it would continue to
evaluate the civil aviation security system to determine if further
changes were warranted.
The bombings of the Federal Building in Oklahoma City and the World
Trade Center Building in New York, along with information provided by
the U.S. intelligence community since those incidents occurred,
indicate that terrorists activities are no longer limited to the
``overseas'' arena. Intelligence information indicates that terrorist
are in the United States, working alone, developing ad-hoc groups, or
as members of established terrorist groups. The White House Commission
on Aviation Safety and Security identified a further need to enhance
the security at our nation's airports. In its final report, it
recommended that ``Given the risks associated with the potential
introduction of explosives into these areas, * * * screeners and
employees with access to secure areas be subject to criminal background
checks and FBI fingerprint checks.''
In Section 304 of the Federal Aviation Reauthorization Act of 1996,
Public Law 104-264 (hereafter ``the Act''), the Congress directed the
FAA to expand the use of both employment background investigations and
fingerprint-based criminal history records checks. Section 304 of the
Act directs the Administrator to issue regulations requiring the
application of the employment background investigation and, when
triggered by specific criteria, criminal history record checks to
individuals who screen passengers and property that will be carried in
a cabin onboard aircraft in air transportation or intrastate air
transportation and the supervisors of those individuals. It also
provides the Administrator with the discretionary authority to apply
those procedures to individuals who exercise security functions
associated with cargo and
[[Page 13263]]
baggage. In addition, Section 306 of the Act directs the Administrator
to provide for the periodic audit of the effectiveness of the criminal
history record checks. The FAA believes that the measures mandated by
Congress will help ensure the integrity of the airport environment.
General Discussion of the Proposal
General
Title 14 of the Code of Federal Regulations (CFR) Part 107
prescribes security requirements for airport operators in the areas of
access control, law enforcement support, and the submissions of airport
security programs for FAA approval. Title 14 CFR Part 108 prescribes
security rules for U.S. carriers. As applied to this proposal, the term
``air carrier'' refers to U.S. air carriers conducting passenger-
carrying operations.
This proposal would extend the requirement for an access
investigation (which would be renamed ``employment background
investigation'') to persons who perform checkpoint screening functions
at airports and their supervisors. Consistent with the statute and the
current rule, it also proposes that if any of four ``triggers'' is
alerted, the employment background investigation would not be
considered complete unless the individual is subject to a fingerprint-
based criminal history records check. The proposal would not bar all
individuals with a criminal history from performing checkpoint
screening functions. However, it would prohibit an individual convicted
of specific crimes from performing the identified security functions.
All other qualifications and training requirements remain in effect for
checkpoint security screeners and their supervisors.
As noted above, section 306 of the Act directs the FAA to provide
for the periodic audit of the effectiveness of the criminal history
records checks. The FAA in its oversight capacity has audited and will
continue to audit these checks. However, the FAA believes that self-
auditing is a valuable tool that assists effective rule implementation.
Therefore, this proposal also would require air carrier and airport
operators to audit their employment background investigations. In this
context, the FAA uses the term audit to indicate the use of random
sampling to review and evaluate the continuing compliance with the
regulatory requirements related to employment background
investigations. The proposed language addressing the audit is general
in nature because the specific details of the audit process will be
contained in security program amendments of each regulated party.
As noted before, section 304 of the Act provides the Administrator
with discretionary authority to require employment background
investigations for other individuals who exercise security functions
associated with baggage or cargo. The proposed rule does not include
language to expand the requirement for such investigations beyond
checkpoint screeners and their supervisors. In large part this is
because most air carrier baggage and cargo personnel currently have
unescorted access to the SIDA and thus already are subject to the
current background check rule. The FAA has considered whether to
include in this proposal those who perform security functions related
to cargo and baggage outside of the security identification display
area, and the FAA requests comments on which, if any, additional cargo
or baggage personnel should be included. Should those who perform other
security functions at the cargo facilities of indirect air carriers and
all-cargo carriers located at the airport be subject to the rule? How
far up the ``cargo handling process'' should the background employment
investigations apply? Should any cargo company on airport property or
just those companies adjacent to the air operations area be included?
Should a rule include cargo facilities not at the airport? Should
office workers be included? Commenters also should include cost
estimates for the recommendations in their comments. The final rule may
expand the scope of application based on the comments received.
Further, the FAA is proposing several other minor changes to the
rule. The first is applicable to air carriers and clarifies the
obligation of the air carriers to do employment background
investigations on persons who receive air carrier issued media that are
accepted by one or more airports for unescorted access within a SIDA.
Second, the proposed rule would require that a completed employment
background investigation file accompany the certification made by the
airport tenant to the airport operator under section 107.31(n)(2).
Third, the proposed rule spells out in more detail the requirements for
the maintenance and control of employment background investigation
files.
Readers familiar with the current sections 107.31 and 108.33
language will note a change in the arrangements of the paragraphs in
addition to the proposed language. The sequence of some paragraphs and
the addition of descriptive paragraph headings are proposed for
clarification.
Section-by-section analysis
Sections 108.33(a) and 107.31(a), Applicability
The FAA is proposing to clarify the applicability of the rule to
individuals who hold only air carrier issued media that permits
unescorted access within a SIDA. Proposed section 108.33(a)(2) would
require that an employment background investigation be completed for
each individual who is issued an air carrier identification that
authorizes such unescorted access, typically flight crews. The proposed
change addresses a situation not anticipated at the time the rule was
originally issued. It has come to the attention of the FAA that not
every flight crewmember is being issued an airport access media at
their ``home base,'' which would have required a certification be made
indicating that an employment background investigation had been
completed.
Additionally, the FAA is also proposing to expand the applicability
of the employment background investigation in Sec. 108.33 to require
that individuals performing screening functions associated with persons
and property entering the cabin of an aircraft be subjected to the same
investigative requirements for their employment history investigation.
The employment background investigation requirement also would apply to
those individuals holding the two immediate supervisory positions above
the screeners. These positions are commonly known as checkpoint
security supervisors (CSS's) and shift or site supervisors. These
generally are the only supervisors at the airport who have direct
control over the screening process. Under proposed paragraph (a)(3),
the employment background investigation requirement would apply
beginning on the effective date to all persons hired to perform the
identified function. Under paragraph (a)(4), all screeners and
supervisors hired before the effective date would have to have an
employment background investigation completed by 1 year after the
effective date.
Sections 108.33(b) and 107.31(b), Employment History Investigation
Required
These paragraphs describe the current 10-year employment background
requirement, which includes the verification of the most recent 5 years
of employment.
[[Page 13264]]
Sections 108.33(c) and 107.31(c), Investigative Steps
These paragraphs specify the steps which must be followed to
complete an employment background investigation. The responsibility
remains with the regulated party to determine when a fingerprint-based
criminal history record check has been triggered. Should the regulated
party make a determination to no longer consider the individual for a
position that requires a completed employment background investigation,
a criminal history record check would not be required. When a criminal
record is returned to the regulated party, that party must make a
comparison of the record to the list of disqualifying crimes. A
conviction of any of the listed crimes, in any jurisdiction, is
disqualifying.
An editorial change is proposed to the list of ``triggers'' that
determine when an individual will be fingerprinted. This proposal
reflects the four criteria as they are listed in the Act. There are no
additions to the current criteria; only the format is changed.
Sections 108.33(d) and 107.31(d), Individual Notification
A minor change is proposed that would require the regulated party
to identify a point of contact when it notifies the affected individual
that a criminal history record check will be conducted.
Sections 108.33(e) and 107.31(e), Fingerprint Processing
These paragraphs essentially match the current regulation with a
few points of clarification added. One clarification is proposed
because some airport operators and air carriers are now submitting
fingerprint cards obtained through local police departments and not
cards which have been provided by the FAA. The current regulation
states that an approved FBI fingerprint card may be used. Although many
cards are approved by the FBI, only those cards issued by the FAA are
intended to be utilized for this program. This clarification is in
keeping with the agreement made between the FAA and the FBI regarding
the processing of the fingerprint cards, and will facilitate the entire
process.
Questions have been raised about whether individuals being
fingerprinted may be allowed to submit their own cards with money
orders to the FAA. Paragraph (e)(2) clarifies that individuals may not
handle or possess the fingerprint card on which their prints have been
taken.
The last point of clarification addresses the cost of processing
fingerprints, which have increased from the time the Final Rule was
issued in October 1995. The difference between the total current
processing cost of $28.00, and the fee found in the current
regulations, $24.00, is being paid by the FAA. Upon the effective date
of a final rule, the entire cost of processing the fingerprint cards
will be assessed to both airport operators and air carriers. In
anticipation of future changes in the cost of processing, the FAA
proposes that the applicable fee will be provided through the local FAA
security offices to air carriers and airport operators.
A point worth reiterating here is that if the first, or subsequent,
set of fingerprints is not classifiable, another set of prints must be
submitted. The employment background investigation is not considered
complete until the regulated party either receives and follows upon the
information contained in the criminal history record or has received a
``no record'' transmittal.
Sections 108.33(f) and 107.31(f), Determination of Arrest Status
No changes have been made.
Sections 108.33(g) and 107.31(g), Availability and Correction of FBI
Records and Notification of Disqualification
These paragraphs contain some of the elements in current sections
108.33(g) and 107.31(k), respectively. The proposal consolidates the
regulated parties' responsibilities regarding notification based on an
individual's criminal record. No substantive changes have been made.
Sections 108.33(h) and 107.31(h), Corrective Action by Individuals
These paragraphs set out in the process by which an individual may
challenge information that they believe to be incorrectly contained in
their criminal history record. Some of the information was previously
contained in sections 108.33(g) and 107.31(g). No substantive changes
have been made.
Sections 108.33(i) and 107.31(i), Limits on Dissemination of Results
No changes have been made.
Sections 108.33(j) and 107.31(j), Employment Status
These new paragraphs clarify the status of those persons awaiting
the results of their fingerprint card submissions. They restate the
current requirement to escort those who are seeking, but have not
cleared for, unescorted SIDA access. Section 108.33(j) proposes that
those individuals applying for screening functions and for screening
supervisory positions may not make independent judgments until their
employment background investigation is completed.
Sections 108.33(k) and 107.31(k), Recordkeeping
The proposal clarifies the intent of the responsibilities of the
regulated parties under the current unescorted access rule. This
proposal reinforces the responsibilities related to the maintenance and
control of the entire employment background investigative file. Special
emphasis has been placed, due to previous confusion, on the handling
and destruction of the criminal history records. A discussion of the
rules governing who may access, maintain, and destroy the FBI criminal
record was included in the preamble to the unescorted access final
rule. The FBI has advised the FAA of its strict interpretation of the
responsibilities and obligations regarding the handling and destruction
of the criminal history records provided to regulated parties. As a
result, the FAA is proposing that only direct employees of airport
operators or air carriers may carry out responsibilities related to the
request, receipt, review, maintenance, and destruction of the
information contained within the criminal history record, as well as
the criminal history record itself. Contract employees are not
considered direct employees. This proposal is consistent with current
FBI requirements in 28 CFR 20.33.
Sections 108.33(l) and 107.31(l), Continuing Responsibilities
Under these paragraphs those individuals who are granted unescorted
SIDA access and those who have been given the responsibility to perform
the listed screening functions or supervisory duties would be obligated
to report themselves to their employer should they subsequently be
convicted of any disqualifying crime. The FAA also proposes that the
tenant employer or contractor employer must report to the airport
operator or the air carrier, as appropriate, either while the
employment investigation is ongoing or afterwards, that an individual
may have a possible conviction of a disqualifying crime. Should this
information be obtained after the individual has been cleared for
unescorted access or to perform screening or supervisory functions in
Secs. 107.31(a) or 108.33(a), the tenant or contractor employer would
be required to report it. The FAA proposes that once this information
becomes available to airport or the air carrier, the regulated party
would have to determine the status of the conviction
[[Page 13265]]
and take appropriate action if the conviction is confirmed.
Section 108.33(m), Air Carrier Responsibilities
This proposal clarifies air carrier's responsibility regarding the
location of employment background investigation files that may not have
been adequately addressed in the unescorted access privilege rule. It
was the intent of the FAA under that rule to have the employment
background investigation files available for inspection by the FAA at
the airport where the air carrier has made a certification to the
airport operator under Sec. 107.31 for the issuance of airport media.
Paragraph (m)(1) of the proposal would make this an explicit obligation
and require the air carrier to designate an individual at each airport
to control and maintain the files.
Under paragraph (m)(2) of the proposed rule, the air carrier also
would be required to designate an individual to oversee the control of
the employment background investigation files of individuals covered by
section 108.33(a)(2), (3), or (4). This would include screeners and
their supervisors, as well as individuals issued air carrier
identification media, for whom no certification was made to an airport
operator under section 107.31(n).
Paragraph (m)(3) would add a requirement for the air carrier to
audit the accuracy and completeness of the employment background
investigations being conducted on both its employees and contractor
employees. The depth of this audit should be specific enough to provide
the regulated party with information regarding the level of
thoroughness being applied to the investigations. This review should be
completed with enough sufficiency to allow the regulated parties to
make determinations on any needed improvements required to maintain
compliance with the regulation. This proposed audit may serve as a
management tool for the regulated party; however, it does not relieve
the party of the responsibility to review each employment background
investigation for compliance with the regulation, to include reviewing
determinations made to initiate a criminal history records check and
requisite resolutions. The details of the audit will be further defined
in the regulated party's security program. Regulated parties may
anticipate that the FAA will develop minimum audit standards to be
applied to air carriers and airport operators as part of their security
programs.
Section 107.31(m), Exception
Based on information the FAA has obtained regarding the processing
of U.S. Customs Service (USCS) background investigations, it has been
determined that the exception provided for in the current 107.31(e)(4)
should no longer be recognized. It has been determined that current
USCS background investigations no longer meet the requirements of the
FAA employment background investigation. Therefore, the FAA proposes to
remove this exception.
Section 107.31(n), Investigations by Air Carrier and Tenants
The FAA proposes that when the airport operator chooses to accept a
certification from a tenant under section 107.31(n)(2), to include
foreign air carriers, the operator must also collect and maintain the
entire employment background investigation file upon which the
certification is based. This will help ensure that the investigations
are properly completed and assist the airport operator in documenting
the information needed for an effective oversight and audit process.
Section 107.31(o), Airport Operator Responsibility
It remains the airport operator's responsibility to designate the
airport security coordinator (ASC) responsible for reviewing and
controlling the results of the employment background investigations,
which will now include employment background investigation files
submitted with tenant certifications. If criminal history records are
requested, the ASC will continue to serve as the contact to receive
notification, if necessary, from individuals of their intent to correct
their criminal history record. A new paragraph 107.31(o)(3) proposes to
require the airport operator to audit the accuracy and completeness of
the background investigations being conducted on its employees and
tenant employees. The details of the audit process will be included
under the security program, similar to the proposal for air carriers
under section 108.33(m).
Economic Summary
The FAA has determined that this proposed rule is not a
``significant rulemaking action,'' as defined by Executive Order 12866
(Regulatory Planning and Review). The anticipated costs and benefits
associated with this proposed rule are summarized below. (A detailed
discussion of costs and benefits is contained in the full evaluation in
the docket for this proposed rule.)
In 1995, the FAA issued a final rule to perform a 10-year
employment review, with a potential for the conduct of a criminal
history records check, of all individuals with unescorted access to the
SIDA. This check was instituted as a measure to ensure that all
individuals with such unescorted access privileges could account for
all their time in the previous 10 years and that they had not been
convicted of enumerated criminal offenses during that time. Specific
standards, if met, would require the performance of a criminal
background check in order for the individual to be further considered
for unescorted access to the SIDA. Convictions for certain crimes could
provide an indication of an individual's predisposition for criminal or
terrorist acts; such individuals could pose threats to aviation
security.
Certain key individuals are not covered under the current rule, and
these include screening personnel. In the wake of an increased
terrorism threat to Americans in general and American aviation in
particular, the U.S. Congress authorized and mandated that the FAA
extend these employment background checks to a new set of aviation
employees. These include persons responsible for the screening of
passengers and property and their supervisors. This Notice of Proposed
Rulemaking (NPRM) proposes to implement this specific portion of the
legislation.
In order to avoid duplication of employment background checks by
entities involved at the airports, the FAA originally granted
exceptions to the requirements for a 10-year employment review. One
such exception was to allow the airport operators to accept the U.S.
Customs Service (USCS) seal or hologram which was granted to an
individual after a USCS background check is conducted. It has been
determined that USCS background checks do not meet the requirements of
FAA regulations. The FAA is proposing this exception no longer be
recognized.
The Office of Civil Aviation Security Operations conducted an audit
of employment background checks required to be maintained by airport
operators and air carriers. The FAA is proposing that airport operators
and air carriers audit employment background investigations that are
conducted in compliance with the regulations to ensure that they are in
compliance.
[[Page 13266]]
Cost of Compliance
The FAA has performed an analysis of the expected costs and
benefits of this regulatory proposal. In this analysis, the FAA
estimated costs for a 10-year period, from 1997 through 2006. As
required by the Office of Management and Budget (OMB), the present
value of this stream, was calculated using a discount factor of 7
percent. All costs in this analysis are in 1995 dollars.
There are currently 18,000 screeners and screener supervisors
filling 12,000 full time equivalent (FTE) positions. Industry estimates
break this down into 16,818 screeners filling 10,818 positions, 1,082
full time checkpoint security supervisors (CSS's), and 100 full time
shift supervisors. The analysis assumes loaded hourly wages of $5.70
for screeners, $6.75 for CSS's, and $11.00 for shift supervisors.
Industry sources report, on average, annual turnovers of 115% for all
screeners, 90% for CSS's, and 20% for shift supervisors. This turnover
rate, of course, will vary by airport and location. Given the
difficulty of discerning the actual turnover rates at individual
airports, the FAA has opted to perform this analysis using a macro
approach and will use these turnover rates for the entire industry. In
addition, this analysis assumes that the number of screeners will grow
at an annual rate of 1.5%.
There are three cost components that need to be considered when an
employee's application triggers the necessity of a criminal history
records check. These involve the fee for processing fingerprints; the
time for a paperwork/clerk specialist to take the fingerprints, do the
requisite paperwork, and mail the forms; and the need for this employee
to be supervised.
Currently, a fingerprint check takes, on average, 54 days to be
processed. During this time period, this particular employee, if hired,
would need to be supervised. This employee's productivity would be low
for he or she would not be able to exercise any independent judgment;
all screened baggage would also need to be checked by this employee's
supervisor, and this employee would not be able to do tasks such as
using the metal detector or hand wand, or perform a physical search. On
the other hand, at times, this employee might be doing tasks that do
not need 100% attention from a supervisor, such as placing bags on the
belt. Accordingly, the FAA will use a 15% productivity rate in this
analysis, but calls for comment.
The alternative would be not to hire the employee until the results
of the fingerprint check come back. Given the high turnover rate of
screeners, there is a good likelihood at many airports that this person
could then be hired based on another job opening.
The FAA examined the cost of both of these alternatives. The lower
cost alternative would be not to hire this person until the fingerprint
check results return; in such a situation, the only costs would be the
costs of fingerprinting the employee. The higher cost alternative would
be to hire this person and pay them even though their productivity
would be low. Screeners would be supervised by another screener, at a
total cost of about $1,850. CSS's would be supervised by another CSS,
at a total cost of about $2,180.
The current processing fee for a fingerprint investigation is $28;
the FAA has been paying the difference between that and the current
published fee of $24. Under the proposal, the cost of fingerprinting
would remain the same; there would be no additional costs to society
from these changes. Employers and/or employees would pay the entire
cost (with employees proscribed from handling the fingerprint cards),
while the FAA would no longer pay the $4 difference. Hence these
incremental changes cancel each other out.
The FAA collected data on the results of the first eight months of
the current rule. Of the applications that were processed 0.4% of
applicants needed to be fingerprinted and because a negligible amount
had a prior criminal conviction which disqualified them, this analysis
will use 0%. In the absence of other information, the FAA will use
these percentages in estimating the costs of this proposed rule. Due to
both the growth rate in screeners and the annual turnover rates, the
FAA estimates that the 10-year costs would range from $41,000 (net
present value, $29,000) to $1.31 million (net present value, $916,000)
with the latter including the cost of supervision.
The FAA anticipates that there would be cost in removing the USCS
exemption in the current Sec. 107.31, but does not have the information
necessary to calculate it, so calls for comment on the number of
airport employees who currently were granted unescorted access due to a
background check from the USCS. Domestic airports that have a USCS
operations present have the option, for specific employees, of granting
SIDA access by conducting the employment background checks itself or
they may accept the USCS' background check. Using the latter option
would cost the airport nothing while using the former would have the
potential for significant cost.
The FAA believes that at some of the larger airports, there may be
several hundred employees that would be affected by the proposed rule
change; given future employee growth and replacement, the costs would
not be negligible. However, there is no definitive source as to how
many such employees exist. It is important to note that no employee who
received unescorted access based on an employment check from USCS would
have to undergo a new check.
This proposal would add a new requirement that would require the
airport operators and air carriers to review the employment background
documentation of their own employees as well as any appropriate
contractors or, in the case of airports, tenants. Reviewing the results
of employment background investigations would be a new requirement for
both airports and air carriers. They would need to develop and carry
out processes by which they would examine the accuracy and completeness
of the employment background investigations being accomplished on all
of its employees.
The actual percentage to be audited may vary by airport and air
carrier and would be included in each individual security program. This
analysis will estimate costs on the assumption that, on average, 5
percent of all employment background investigations would be checked.
The average check would involve a paperwork/clerk specialist going
through the employee's application and checking to make sure that all
items were accurate. The FAA estimates that the average investigation
would cost approximately $55.
Based on the number of employees at airports with unescorted access
privileges, specific employee growth rates, and annual attrition rates,
the FAA calculates 10 year costs for the airports to be $3.50 million
(net present value, $2.41 million). Meanwhile, the air carriers would
need to run checks on the screeners and screener supervisors that are
hired during this time period. The 10-year costs for the airports sum
to $618,500 (net present value, $430,800).
The 10-year cost of this proposed rule would range from $4.16
million (net present value, $2.87 million) to $5.44 million (net
present value, $3.76 million).
Analysis of Benefits
The proposed rule to amend parts 107 and 108 is intended to enhance
aviation safety. The primary benefit of the proposed rule would be to
strengthen airport and air carrier security. Aviation security is
achieved through an intricate set of interdependent requirements. It
[[Page 13267]]
would be difficult to separate out any current existing requirement or
any proposed change and identify to what extent that requirement or
that change, alone, would prevent a criminal or terrorist act in the
future. Certainly, it would be difficult to show that this proposal,
alone, would be solely responsible for preventing future such
incidents.
President Clinton, in July 1996, declared that the threat of both
foreign and domestic terrorism to aviation is a national threat. The
U.S. Congress recognized this threat in the Act by: (1) Authorizing
money for the purchase of specific anti-terrorist equipment, and the
hiring of extra security personnel; and (2) requiring the FAA to
promulgate additional security-related regulations. This proposal seeks
to establish one of these security-related regulations.
Since the mid-1980's, the major goals of aviation security have
been to prevent bombing and sabotage incidents. Preventing an explosive
or incendiary device from getting on board an airplane is one of the
major lines of defense against an aviation-related criminal or
terrorist act. The individuals covered by this proposed rule play a
major role in preventing such occurrences. Requiring an employment
background check, and as needed the subsequent criminal history record
check of a person covered under this proposed rule, could reveal
information which could point out a susceptibility of the individual to
be involved or to become involved in criminal or terrorist activity.
Such individuals could definitely be a threat to aviation security.
The most deadly and expensive example of the type of explosion that
aviation security is trying to prevent is the Pan Am 103 tragedy over
Lockerbie, Scotland. A conservative estimate of the costs associated
with this catastrophe yields $1.4 billion. While the specific proposals
in this proposed regulation may not, by themselves, have prevented this
tragedy, this cost underscores the consequences of not taking prudent
security-related steps.
Some benefits can be quanti--prevention of fatalities and injuries
and the loss of aircraft and other property. Other benefits are no less
important, but are probably impossible to quantify--the perception of
improved security on the part of the traveling public, and general
gains for the U.S. attributable to the commitment to enhance aviation
security.
Comparison of Costs and Benefits
The 10-year cost of this proposed rule would range from $4.16
million (net present value, $2.87 million) to $5.44 million (net
present value, $3.76 million). This cost needs to be compared to the
possible tragedy that could occur if a bomb or some other incendiary
device were to get onto an airplane and cause an explosion. Recent
history not only points to Pan Am 103's explosion over Lockerbie,
Scotland, but also the potential of up to twelve American airplanes
being blown up in Asia in early 1995. While the specific proposals in
this proposed regulation may not, by themselves, have been factors in
the occurrence of Pan Am 103 or the prevention of the culmination of
the conspiracy in Asia, these potential devastating costs emphasize the
consequences of not taking sensible security-related steps.
Congress has mandated that the FAA promulgate these proposed
regulations. Congress, which reflects the will of the American public,
has determined that this proposed regulation is in the best interest of
the nation. Because this proposed regulation reflects the will of the
American people, and because its cost is low compared to the potential
catastrophe of a single bomb explosion on an airplane, the FAA finds
this propose rule cost-beneficial.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily burdened
by government regulations. The RFA requires agencies to review rules
that may have a ``significant economic impact on a substantial number
of small entities.''
The FAA's criterion for a ``substantial number'' is a number that
is not less than 11 and that is more than one third of the small
entities subject to the rule. For operators of aircraft for hire, a
small operator is not that owns, but not necessarily operates, nine or
fewer aircraft. The FAA's criteria for ``significant impact'' are
$4,900 or more per year for an unscheduled operator, $124,000 or more
per year for a scheduled operator whose entire fleet is made up of
airplanes with over 60 seats, and $69,000 or more per year for other
scheduled carriers.
Meanwhile, a small airport is one owned by a country, city, town or
other jurisdiction having a population of 49,999 or less. If two or
more towns, cities, or counties operate an airport jointly, the
population size of each is totaled to determine whether that airport is
categorized as a small entity. The threshold annualized cost level of
$8,000.
Only scheduled carriers and public charters are required to conduct
screening. The total cost for a screener or a CSS whose application
triggers a background check, and who is hired for the 54 day
investigatory process, would be $1,758.86 and $2,082.86, respectively.
An investigation would cost $55.28, so the highest possible annual cost
for a screener would be $1,862.24 and for a CSS would be $2,186.24. A
scheduled air carrier would need to have either 38 new screeners or 32
new CSS's in a single year, needing a background check, to exceed
$69,000. The analysis that no more than 91 screeners would need an
employment background check in any given year. It is extremely unlikely
that one individual air carrier would decide to hire, through screening
companies, 42% of those screeners, especially given the low
productivity of these employees for this time period.
Meanwhile, because almost all CSS's move up through the ranks
rather than being hired from the outside, they would have already been
subject to the requisite investigations, if they were necessary. Based
on projected annual growth and turnover rates as well as assumed
percentage of employees needing fingerprint checks, this analysis
assumes that no CSS would be subject to an employment background check.
Hence, no scheduled air carrier would have these costs exceed $69,000.
The only small entity airports that would have unescorted access
privileges would have less than 2 million person screenings per year.
At such airports, an average of 554 employees have such access. Hence,
in any given year, no more than 28 employees would have their
applications checked. At $55.28 per investigation, the airport
operators costs would equal $1,548, which is less than the threshold
cost.
Accordingly, the annual costs expected to be imposed on small
operators would not exceed the thresholds for significant impact
outlined above. Therefore, the FAA finds that this proposed rule would
not have a significant economic impact on a substantial number of small
entities.
International Trade Impact Statement
In accordance with the Office of Management and Budget memorandum
dated March 1983, federal agencies engaged in rulemaking activities are
required to assess the effects of regulatory changes on international
trade. Since both domestic and international air carriers use
screeners, this proposed rule change would have an equal effect on
both. Unlike domestic air carriers that compete with foreign air
carriers, domestic airports are not in competition with foreign
airports. For
[[Page 13268]]
this reason, a trade impact assessment would not be applicable for
domestic airports.
Unfunded Mandate
Title II of the Unfunded Mandates Reform Act of 1995 (the Reform
Act), enacted as Public Law 104-4 on March 22, 1995, requires each
Federal agency, to the extent permitted by law, to prepare a written
assessment of the effects of any Federal mandate in a proposed or final
agency rule that may result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Reform Act, 2 U.S.C. 1534(a), requires the
Federal agency to develop an effective process to permit timely input
by elected officers (or their designees) of State, local and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Reform Act is any
provision in a Federal agency regulation that would impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the Reform Act, 2 U.S.C. 1533, which supplements
section 204(a), provides that before establishing any regulatory
requirements that might significantly or uniquely affect small
governments, the agency shall have developed a plan that among other
things, provides for notice to potentially affected small governments,
if any, and for a meaningful and timely opportunity to provide input in
the development of regulatory proposals.
This proposed rule does not contain any significant Federal
intergovernmental or private sector mandate. Therefore, the
requirements of Title II of the Reform Act do not apply.
Federalism Implications
The regulations proposed herein do not have a substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Therefore, in
accordance with Executive Order 12612, it is determined that this
proposed rule does not have federalism implications warranting the
preparation of a Federalism Assessment.
International Civil Aviation Organization (ICAO) and Joint Aviation
Regulations
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with ICAO
Standards and Recommended Practices to the maximum extent practicable.
The FAA finds no corresponding International Civil Aviation
Organization regulations or Joint Aviation Regulations; therefore, no
differences exist.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1955, 44 U.S.C.
3501 et seq., the information collection requirements associated with
this rule are being submitted to the Office of Management and Budget
for review.
The unescorted access privilege requirements for Parts 107 and 108
have been previously assigned Office of Management and Budget (OMB)
Control No. 2120-0564. This NPRM, although it has a different title,
applies the same recordkeeping requirements for unescorted access to a
different population, as required under the Federal Aviation
Reauthorization Act of 1996. The additional population affected are
those individuals, and their supervisors, who perform screening
functions related to the persons and property which are carried aboard
the cabin of an aircraft engaged in air transportation. The statute
also provides for background checks on those who perform cargo and
baggage security related functions, as the Administrator determines is
necessary. Comments are requested from the public. Based on those
comments, persons or positions may be specifically designated, and may
be included in the final rule.
The employment background information is collected from those who
apply for positions listed in the previous paragraph. The information
is collected by either the airport operator or the air carrier who is
seeking to employ persons to perform those functions at any U.S.
airport operating under Part 107. The purpose of the employment review
is to determine if any one of four standards is met; if so, an FBI
criminal history records check must be performed if the person is to be
further considered for performing the listed functions. Lacking
evidence that such a review was completed, either the airport operator
or the air carrier, whomever is the regulated party, may be subject to
a violation which could carry a civil penalty. An addition which will
be covered under this NPRM is that the airport operators and air
carriers conduct a periodic audit on the completed employment
background applications. The process implemented by each regulated
party will be described and added to their respective security
programs. The time needed to update the security programs with this
information is estimated to take 2 hours. Further it is estimated that
this addition to the security program will only occur once. The total
estimated burden is based on 2 hours times 574 (443 airports + 131 air
carriers), for a total of 1,148 hours.
The FAA considers comments by the public on the proposed collection
of information in order to evaluate the accuracy of the estimate of the
burden of the proposed collection of information, the quality, utility
and clarify of the information to be collected, and possible ways to
minimize the burden of the collection.
In submitting comments to OMB, commenters should keep in mind that
OMB is required to make a decision concerning the collection of
information contained in the proposed regulations between 30 and 60
days after publication of this document in the Federal Register.
Comments on the proposed information collection requirements should
be submitted to: Office of Management and Budget, Washington, DC 20503,
Attention: Desk Officer for the Federal Aviation Administration, U.S.
Department of Transportation. It is requested that comments sent to OMB
also be sent to the FAA at the address listed in the comments section.
Conclusion
The FAA has determined that this proposed regulation is not a
significant rule under Executive Order 12866; and is not a significant
proposed rule under Department of Transportation Regulation Policies
and Procedures (44 FR 11034; February 26, 1979). Also, for the reasons
stated under the headings ``Trade Impact Statement'' and ``Regulatory
Flexibility Determination,'' the FAA certifies that the NPRM will not
have a significant economic impact on small entities. A copy of the
full regulatory evaluation is filed in the docket and may also be
obtained by contacting the person listed FOR FURTHER INFORMATION
CONTACT.
List of Subjects in 14 CFR Parts 107 and 108
Air carriers, Air transportation, Airlines, Airplane operator
security, Aviation safety, Reporting and record keeping requirements;
Security measures, Transportation, Weapons.
The Proposed Amendments
For the reasons set forth in the preamble, it is proposed to amend
14 CFR Chapter I as follows:
[[Page 13269]]
PART 107--AIRPORT SECURITY
1. The authority citation for Part 107 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105;
Sec. 306, Pub. L. 104-264, 110 Stat. 3213, 49 U.S.C. 44936.
2. Section 107.31 is revised to read as follows:
Sec. 107.31 Employment history, verification and criminal history
records checks.
(a) Applicability. On or after January 31, 1996, this section
applies to all individuals seeking authorization for, or seeking the
authority to authorize others to have, unescorted access privileges to
the security display area (SIDA) that is identified in Sec. 107.25 of
this part.
(b) Employment background investigations required. Except as
provided in paragraph (m) of this section, each airport operator shall
ensure that no individual is granted authorization for, or is granted
authority to authorize others to have, unescorted access to the SIDA
unless the following requirements are met:
(1) The individual has satisfactorily undergone a review covering
the past 10 years of employment history and verification of the 5 years
preceding the date the employment background investigation is initiated
as provided in paragraph (c) of this section; and
(2) The results of the employment background investigation do not
disclose that the individual has been convicted or found not guilty by
reason of insanity, in any jurisdiction, during the 10 years ending on
the date of such investigation, of a crime involving any of the
following crimes enumerated in paragraphs (b)(2) (i) through (xxv) of
this section. Where specific citations are listed, both the current
citation and the citation that applied before the statute was
recodified in 1994 are listed.
(i) Forgery of certificates, false marking of aircraft, and other
aircraft registration violation, 49 U.S.C. 46306 [formerly 49 U.S.C.
App. 1472(b)];
(ii) Interference with air navigation, 49 U.S.C. 46308 [formerly 49
U.S.C. App. 1472(c)];
(iii) Improper transportation of a hazardous material, 49 U.S.C.
46312 [formerly 49 U.S.C. App. 1472(b)(2)];
(iv) Aircraft piracy, 49 U.S.C. 46502 [formerly 49 U.S.C. App.
1472(i);
(v) Interference with flight crew members or flight attendants, 49
U.S.C. 46504 [formerly 49 U.S.C. App. 1472(j)];
(vi) Commission of certain crimes aboard aircraft in flight, 49
U.S.C. 46506 [formerly 49 U.S.C. App. 1472(k)];
(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.
46505 [formerly 49 U.S.C. App. 1472(l)];
(viii) Conveying false information and threats, 49 U.S.C. 46507
[formerly 49 U.S.C. App. 1472(m)];
(ix) Aircraft piracy outside the special aircraft jurisdiction of
the United States, 49 U.S.C. 46502(b) [formerly 49 U.S.C. App.
1472(n)];
(x) Lighting violations involving transporting controlled
substances, 49 U.S.C. 46315 [formerly 49 U.S.C. App. 1472(q)];
(xi) Unlawful entry into an aircraft or airport area that serves
air carriers or foreign air carriers contrary to established security
requirements, 49 U.S.C. 46314 [formerly 49 U.S.C. App. 1472(r)];
(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C.
32;
(xiii) Murder;
(xiv) Assault with intent to murder;
(xv) Espionage;
(xvi) Sedition;
(xvii) Kidnapping or hostage taking;
(xviii) Treason;
(xix) Rape or aggravated sexual abuse;
(xx) Unlawful possession, use, sale, distribution, or manufacture
of an explosive or weapon;
(xxi) Extortion;
(xxii) Armed robbery;
(xxiii) Distribution of, or intent to distribute, a controlled
substance;
(xxiv) Felony arson; or
(xxv) Conspiracy or attempt to commit any of the aforementioned
criminal acts.
(c) Investigative steps. The employment background investigation
shall consist of the following steps:
(1) The individual shall provide the following on an application
form:
(i) The individual's full name, including any aliases or nicknames.
(ii) The dates, names, phone numbers, and addresses of previous
employers, with explanations for any gaps in employment of more than 12
consecutive months, during the previous 10-year period.
(iii) Any convictions during the previous 10-year period of the
crimes listed in paragraph (b)(2) of this section.
(2) The airport operator shall include on the application form a
notification that the individual will be subject to an employment
history verification and possibly a criminal history records check.
(3) The airport operator shall verify the identify of the
individual through the presentation of two forms of identification, one
of which must bear the individual's photograph.
(4) The airport operator shall verify the information on the most
recent 5 years of employment history required under paragraph
(c)(1)(ii) of this section. Information shall be verified in writing,
by documentation, by telephone, or in person.
(5) If one or more of the following conditions exists, the
employment background investigation shall not be considered complete
unless it includes a check of the individual's 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 of
more of the following conditions exists:
(i) The individual does not satisfactorily account for a period of
unemployment of 12 consecutive months or more during the previous 10-
year period.
(ii) The individual is unable to support statements made on the
application form.
(iii) There are significant inconsistencies in the information
provided on the application.
(iv) Information becomes available to the airport operator or the
tenant employer during the investigation indicating a possible
conviction for one of the crimes listed in (b)(2).
(d) Individual notification. Prior to commencing the criminal
history records check, the airport operator shall notify the affected
individual and identify the Airport Security Coordinator as the point
of contact for follow-up.
(e) Fingerprint processing. The airport operator shall collect and
process fingerprints in the following manner:
(1) One set of legible and classifiable fingerprints shall be
recorded on fingerprint cards approved by the FBI, and distributed by
the FAA for this purpose.
(2) The fingerprints shall be obtained from the individual under
direct observation by the airport operator or a law enforcement
officer. Individuals submitting their fingerprints shall not take
possession of their fingerprint card after they have been
fingerprinted.
(3) The identity of the individual shall be verified at the time
fingerprints are obtained. The individual shall present two forms of
identification, one of which must bear the individual's photograph.
(4) The fingerprint card shall be forwarded to Federal Aviation
Administration, 800 Independence Ave, S.W., Washington, D.C. 20591
(ATTN: ACO-300, Fingerprint Processing).
(5) Fees for the processing of the criminal checks are due upon
application. Airport operators shall
[[Page 13270]]
submit payment through corporate check, cashier's check, or money order
made payable to ``U.S. FAA,'' at the prevailing rate for each
fingerprint card. Combined payment for multiple applications is
acceptable. The prevailing rate for processing the fingerprint cards is
available from the local FAA security office.
(f) Determination of arrest status. In conducting the criminal
history records check required by this section, the airport operator
shall investigate arrest information for the crimes listed in paragraph
(b)(2) of this section for which no disposition has been recorded to
make a determination on the outcome of the arrest.
(g) Availability and correction of FBI records and notification of
disqualification.
(1) At the time the fingerprints are taken, the airport operator
shall notify the individual that a copy of the criminal history record
received from the FBI will be made available if requested in writing.
When requested in writing, the airport operator shall make available to
the individual a copy of any criminal record received from the FBI.
(2) Prior to making a final determination to deny authorization to
individuals described in paragraph (a) of this section, the airport
operator shall advise individuals that the FBI criminal history record
discloses information that would disqualify them from positions covered
under this rule and provide each individual with a copy of their FBI
record if it has been requested.
(3) The airport operator shall notify an individual that a final
determination has been made to grant or deny authority for unescorted
access.
(h) Corrective action by individuals. Individuals may contact the
local jurisdiction responsible for the information and the FBI to
complete or correct the information contained in their record before
any final determination is made, subject to the following conditions:
(1) Within 30 days after being advised that the criminal history
record received from the FBI discloses disqualifying information,
individuals must notify the airport operator, in writing, of their
intent to correct any information believed to be inaccurate.
(2) Upon notification by an individual that the record has been
corrected, the airport operator must obtain a copy of the revised FBI
record prior to making a final determination.
(3) If no notification is received within 30 days, the airport
operator may make a final determination.
(i) Limits on dissemination of results. Criminal history record
information provided by the FBI shall be used solely for the purposes
of this section, and no person shall disseminate the results of a
criminal history records check to anyone other than:
(1) The individual to whom the record pertains or that individual's
authorized representative;
(2) Airport officials with a need to know; and
(3) Others designated by the Administrator.
(j) Employment status while awaiting criminal record checks.
Individuals who have submitted their fingerprints and are awaiting FBI
results may perform work within the SIDA when under escort by someone
who has unescorted SIDA access privileges.
(k) Recordkeeping. It is the airport operator's responsibility to
make any criminal history records request as appropriate to this
regulation, to receive and review the criminal history records of
applicants, and to maintain and destroy these sensitive documents. The
criminal record responsibilities shall be carried out only by direct
airport operator employees. The airport operator shall maintain and
control in a manner acceptable to the Administrator the following
written records for each individual until 180 days after the
termination of the individual's authority for unescorted access or the
individuals authority to authorize others to have unescorted access:
(1) A record of each individual subject to an employment background
investigation that includes:
(i) The application;
(ii) The employment verification information obtained by the
employer;
(iii) The names of those from whom the employment verification
information was obtained;
(iv) The date and the method of how the contact was made; and
(v) Any other information as required by the Administrator.
(2) A record for each individual subject to a criminal history
records check shall include, in addition to the records in paragraph
(k)(1) of this section, the results of the record check, or a
certification by the airport operator or air carrier that the check was
completed and did not uncover a disqualifying conviction.
(l) Continuing responsibilities.
(1) Any individual authorized to have unescorted access privileges
or who may authorize others to have unescorted access privileges who is
subsequently convicted of any of the crimes listed in paragraph (b)(2)
of this section shall report the conviction to the airport operator and
surrender the SIDA access medium within 24 hours to the issuer.
(2) If information becomes available to the airport operator or the
tenant employer indicating that an individual has a possible conviction
for one of the disqualifying crimes in paragraph (b)(2) of this
section, the airport operator shall determine the status of the
conviction. If a disqualifying conviction is confirmed the airport
operator shall withdraw any authority granted under this section.
(m) Exceptions. Notwithstanding the requirements of this section,
an airport operator may authorize the following individuals to have
unescorted access to the SIDA or perform functions listed in paragraph
(a) of this section:
(1) Employees of the Federal government or a state or local
government (including law enforcement officers) who, as a condition of
employment, have been subject to an employment investigation which
includes a criminal history records check.
(2) Crew members of foreign air carriers covered by an alternate
security arrangement in the approved airport security program.
(3) An individual who has been continuously employed in a position
requiring unescorted access by another airport operator, airport tenant
or air carrier.
(n) Investigations by air carriers and tenants. An airport operator
will be deemed to be in compliance with its obligation under paragraph
(b) of this section, as applicable, when it accepts one of the
following:
(1) certification from an air carrier subject to section 108.33 of
this chapter that it has complied with section 108.33 (b)(1) and (b)(2)
for the individual, or
(2) certification from a tenant that it has complied with paragraph
(b)(1) of this section for the individual, and the tenant includes the
completed employment background investigation file.
(o) Airport operator responsibility. The airport operator shall:
(1) Designate the airport security coordinator to be responsible
for reviewing and controlling the results of the employment background
investigation;
(2) Designate the airport security coordinator to serve as the
contact to receive notification from individuals applying for
unescorted access of their intent to seek correction of their criminal
history record with the FBI; and
(3) Audit the employment background investigations performed in
accordance with this section, except those employment background
investigations subject to certification under paragraph
[[Page 13271]]
(n)(1). The audit process shall be set forth in the airport security
program.
PART 108--AIRPLANE OPERATOR SECURITY
3. The authority citation for Part 108 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40101, 40102, 40113, 40119, 44701-
44713, 44901-44915, 44931-44937, 46105; Sec. 306, Pub. L. 104-264,
110 Stat. 3213, 49 U.S.C. 44936.
4. Section 108.33 is revised to read as follows:
Sec. 108.33 Employment history, verification and criminal history
records checks.
(a) Applicability.
(1) This section applies to each individual covered under a
certification made to an airport operator pursuant to section 107.31(n)
of this chapter.
(2) This section applies to each individual who is issued
identification media that one or more airports approve for unescorted
access within a security identification display area (SIDA) that is
identified in Sec. 107.25 of this chapter.
(3) This section applies to each individual who, after [insert
effective date of rule], is hired to perform the following functions:
(i) Screens passengers or property that will be carried in a cabin
of an aircraft of an air carrier required to screen passengers under
this part.
(ii) Serves as an immediate supervisor, also known as a security
checkpoint supervisor (CSS), to those individuals described in
paragraph (a)(3)(i) of this section or, serves at the next supervisory
level, commonly referred to as a shift or site supervisor.
(4) This section applies to each individual who was hired before
[insert effective date of rule] and who after [insert date 1 year after
the effective date of the rule] performs any of the functions
identified in paragraph (a)(3) of this section.
(b) Employment history investigations required. Each air carrier
shall ensure that the following requirements are met for each
individual identified under paragraph (a) of this section:
(1) The individual has satisfactorily undergone a review covering
the past 10 years of employment history and verification of the 5 years
preceding the date the employment background investigation is initiated
as provided in paragraph (c) of this section; and
(2) The results of the employment background investigation do not
disclose that the individual has been convicted or found not guilty by
reason of insanity, in any jurisdiction, during the 10 year ending on
the date of such investigation, of a crime involving any of the
following crimes enumerated in paragraphs (b)(2)(i) through (xxv) of
this section. Where specific citations are listed, both the current
citation and the citation that applied before the statute was
recodified in 1994 are listed.
(i) Forgery of certificates, false marking of aircraft, and other
aircraft registration violation, 49 U.S.C. 46306 [formerly 49 U.S.C.
App. 1472(b)];
(ii) Interference with air navigation, 49 U.S.C. 46308 [formerly 49
U.S.C. App. 1472(c)];
(iii) Improper transportation of a hazardous material, 49 U.S.C.
46312 [formerly 49 U.S.C. App. 1472(b)(2)];
(iv) Aircraft piracy, 49 U.S.C. 46502 [formerly 49 U.S.C. App.
1472(i);
(v) Interference with flight crewmember members or flight
attendants, 49 U.S.C. 46504 [formerly 49 U.S.C. App. 1472(j)];
(vi) Commission of certain crimes aboard aircraft in flight, 49
U.S.C. 46506 [formerly 49 U.S.C. App. 1472(k)];
(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.
46505 [formerly 49 U.S.C. App. 1472(l)];
(viii) Conveying false information and threats, 49 U.S.C. 46507
[formerly 49 U.S.C. App. 1472(m)];
(ix) Aircraft piracy outside the special aircraft jurisdiction of
the United States, 49 U.S.C. 46502(b) [formerly 49 U.S.C. App.
1472(n)];
(x) Lighting violations involving transporting controlled
substances, 49 U.S.C. 46315 [formerly 49 U.S.C. App. 1472(q)];
(xi) Unlawful entry into an aircraft or airport area that serves
air carriers or foreign air carriers contrary to established security
requirements, 49 U.S.C. 46314 [formerly 49 U.S.C. App. 1472(r)];
(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C.
32;
(xiii) Murder;
(xiv) Assault with intent to murder;
(xv) Espionage;
(xvi) Sedition;
(xvii) Kidnapping or hostage taking;
(xviii) Treason;
(xix) Rape or aggravated sexual abuse;
(xx) Unlawful possession, use, sale, distribution, or manufacture
of an explosive or weapon;
(xxi) Extortion;
(xxii) Armed robbery;
(xxiii) Distribution of, or intent to distribute, a controlled
substance;
(xxiv) Felony arson; or
(xxv) Conspiracy or attempt to commit any of the aforementioned
criminal acts.
(c) Investigative steps. The employment background investigation
shall consist of the following steps:
(1) The individual shall provide the following information on an
application form:
(i) The individual's full name, including any aliases or nicknames.
(ii) The dates, names, phone numbers, and addresses of previous
employers, with explanations for any gaps in employment of more than 12
consecutive months, during the previous 10-year period.
(iii) Any convictions during the previous 10-year period of the
crimes listed in paragraph (b)(2) of this section.
(2) The air carrier shall include on their application form a
notification that the individual will be subject to an employment
history verification and possibly a criminal history records check.
(3) The air carrier shall verify the identity of the individual
through the presentation of two forms of identification, one of which
must bear the individual's photograph.
(4) The air carrier shall verify the information on the most recent
5 years or employment history required under paragraph (c)(1)(ii) of
this section. Information shall be verified in writing, by
documentation, by telephone, or in person.
(5) If one or more of the following conditions exists, the
employment background investigation shall not be considered complete
unless it includes a check of the individual's fingerprint-based
criminal history record maintained by the Federal Bureau of
Investigation (FBI). The air carrier may request a check of the
individual's fingerprint-based criminal history record only if one or
more of the following conditions exists:
(i) The individual does not satisfactorily account for a period of
unemployment of 12 months or more during the previous 10-year period.
(ii) The individual is unable to support statements made on the
application form.
(iii) There are significant inconsistencies in the information
provided on the application.
(iv) Information becomes available to the air carrier during the
investigation indicating a possible conviction for one of the crimes
listed in (b)(2).
(d) Individual notification. Prior to commencing the criminal
history records check, the air carrier shall notify the affected
individual and identify a point of contact for follow-up.
(e) Fingerprint processing. The air carrier shall collect and
process fingerprints in the following manner:
(1) One set of legible and classifiable fingerprints shall be
recorded on fingerprint cards approved by the FBI,
[[Page 13272]]
and distributed by the FAA for this purpose.
(2) The fingerprints shall be obtained from the individual under
direct observation by the air carrier or a law enforcement officer.
Individuals submitting their fingerprints shall not take possession of
their fingerprint card after they have been fingerprinted.
(3) The identity of the individual shall be verified at the time
fingerprints are obtained. The individual shall present two forms of
identification, one of which must bear the individual's photograph.
(4) The fingerprint card shall be forwarded to Federal Aviation
Administration, 800 Independence Ave., SW., Washington, DC 20591 (ATTN:
ACO-300, Fingerprint Processing).
(5) Fees for the processing of the criminal history record checks
are due upon application. Air carriers shall submit payment through
corporate check, cashier's check, or money order made payable to ``U.S.
FAA,'' at the prevailing rate for each fingerprint card. Combined
payment for multiple applications is acceptable. The prevailing rate
for processing the fingerprint cards is available from the local FAA
security office.
(f) Determinaiton of arrest status. In conducting the criminal
history records check required by this section, the air carrier shall
investigate arrest information for the crimes listed in paragraph
(b)(2) of this section for which no disposition has been recorded to
make a determination of the outcome of the arrest.
(g) Availability and correction of FBI records and notification of
disqualification.
(1) At the time the fingerprints are taken, the air carrier shall
notify the individual that a copy of the criminal history record
received from the FBI will be made available if requested in writing.
When requested in writing, the air carrier shall make available to the
individual a copy of any criminal history record received from the FBI.
(2) Prior to making a final determination to deny authorization to
individuals described in paragraph (a) of this section, the air carrier
shall advise individuals that the FBI criminal history record discloses
information that would disqualify them from positions covered under
this rule and provide each individual with a copy of their FBI record
if it has been requested.
(3) The air carrier shall notify an individual that a final
determination has been made to grant or deny authority for unescorted
access, or for performing functions listed under paragraph (a) (2),
(3), or (4) of this section.
(h) Corrective action by individuals. Individuals may contact the
local jurisdiction responsible for the information and the FBI to
complete or correct the information contained in their record before
any final access determination is made, subject to the following
conditions:
(1) Within 30 days after being advised that the criminal history
record received from the FBI discloses disqualifying information,
individuals must notify the air carrier, in writing, of their intent to
correct any information believed to be inaccurate.
(2) Upon notification by an individual that the record has been
corrected, the air carrier must obtain a copy of the revised FBI
criminal history record prior to making a final determination.
(3) If no notification is received within 30 days, the air carrier
may make a final determination.
(i) Limits on dissemination of results. Criminal history record
information provided by the FBI shall be used solely for the purpose of
this section, and no person shall disseminate the results of a criminal
history records check to anyone other than:
(1) The individual to whom the record pertains or that individual's
authorized representative;
(2) Air carrier officials with a need to know; and
(3) Others designated by the Administrator.
(j) Employment status while awaiting criminal record checks.
Individuals who have submitted their fingerprints and are awaiting FBI
results may perform work under the following conditions:
(1) Those seeking unescorted access to the SIDA must be escorted by
someone who has unescorted SIDA access privileges;
(2) Those applicants seeking positions covered under paragraphs
(a)(2), (3), or (4) of this section shall not exercise any independent
judgments regarding those functions.
(k) Recordkeeping. It is the air carrier's responsibility to make
any criminal history records request as appropriate to this regulation,
to receive and review the criminal history records of applicants, and
to maintain and destroy these sensitive documents. The criminal record
responsibilities shall be carried out only by direct air carrier
employees. The air carrier shall physically maintain and control in a
manner acceptable to the Administrator the following written records
for each individual until 180 days after ceasing to perform the
functions identified in paragraph (a) of this section.
(1) A record of each individual subject to an employment background
investigation that includes:
(i) The application;
(ii) The employment verification information obtained by the air
carrier;
(iii) The names of those from whom the employment verification
information was obtained;
(iv) The date and the method of how the contact was made; and
(v) Any other information as required by the Administrator.
(2) A record for each individual subject to a criminal history
records check shall include, in addition to the records in paragraph
(k)(1) of this section, the results of the records check, or a
certification by the air carrier that the check was completed and did
not uncover a disqualifying conviction.
(l) Continuing responsibilities. (1) Any individual authorized to
have unescorted access privilege to the SIDA or that perform functions
covered under paragraphs (a)(2), (3), or (4) of this section, who is
subsequently convicted of any of the crimes listed in paragraph (b)(2)
of this section, shall report the conviction within 24 hours to the air
carrier and surrender the SIDA access medium or any identification
medium provided to them related to positions covered under (a)(2), (3)
or (4) of this section.
(2) If information becomes available to the air carrier indicating
that an individual has a possible conviction for one of the
disqualifying crimes in paragraph (b)(2) of this section, the air
carrier shall determine the status of the conviction. If the conviction
is confirmed the air carrier shall withdraw any authority granted under
this section.
(m) Air carrier responsibilities. The air carrier shall--
(1) Designate an individual at each airport to control and maintain
the employment background investigation files of individuals for whom
the air carrier has made a certification to the airport operator under
Sec. 107.31(n)(1) of this chapter.
(2) Designate an individual, in the security program, to oversee
the control of employment background investigation files of individuals
subject to section 108.33(a) (2), (3), or (4). The files shall be kept
in a location or locations acceptable to the Administrator and
identified in the security program.
(3) Audit the employment background investigations performed in
accordance with this section. The audit process shall be set forth in
the air carrier approved security program.
[[Page 13273]]
Issued in Washington on March 14, 1997.
Anthony Fainberg,
Director, Office of Civil Aviation Security Policy and Planning.
[FR Doc. 97-6947 Filed 3-14-97; 3:19 pm]
BILLING CODE 4910-13-M
