[Federal Register Volume 63, Number 185 (Thursday, September 24, 1998)]
[Rules and Regulations]
[Pages 51204-51222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25210]
[[Page 51203]]
_______________________________________________________________________
Part IV
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 107 and 108
Employment History, Verification and Criminal History Records Check;
Final Rule
Federal Register / Vol. 63, No. 185 / Thursday, September 24, 1998 /
Rules and Regulations
[[Page 51204]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 107 and 108
[Docket No. 28859; Amendment No. 107-12, 108-17]
RIN 2120-AG32
Employment History, Verification and Criminal History Records
Check
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: The FAA amends the regulations that require an access
investigation, including a fingerprint-based criminal record check in
certain cases, for unescorted access privileges to security areas at
airports. This final rule extends the requirement for an access
investigation (which is renamed ``employment history investigation'')
to persons who perform checkpoint screening functions at airports and
their supervisors. The final rule also requires airport operators and
air carriers to audit employment history investigations. This final
rule is in response to the Federal Aviation Reauthorization Act of 1996
and seeks to improve the security of the airport environment.
EFFECTIVE DATE: November 23, 1998.
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:
Availability of Final Rule
This document may be downloaded from the FAA regulations section of
the FedWorld electronic bulletin board (telephone: 703-321-3339), the
Federal Register's electronic bulletin board (telephone: 202-512-1661),
or the FAA's Aviation Rulemaking Advisory Committee Bulletin Board
(telephone: 800-322-2722 or 202-267-5948).
Internet users may access the FAA's web page at http://www.faa.gov
or the Federal Register's web page at http://www/access.gpo.gov/
su__docs to download recently published rulemaking documents.
Any person may obtain a copy of this final rule 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) 267-9677. Communications must reference the amendment
number of this final rule.
Persons interested in being placed on the mailing list for future
rules should request a copy of Advisory Circular (AC) No. 11-2A, Notice
of Proposed Rulemaking Distribution System, which describes the
application procedure.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires the FAA to report inquiries from small entities
concerning information on, and advice about, compliance with statutes
and regulations within the FAA's jurisdiction, including interpretation
and application of the law to specific sets of facts supplied by a
small entity.
The FAA's definitions of small entities may be accessed through the
FAA's web page http://www.faa.gov/avr/arm/sbrefa.htm, by contacting a
local FAA official, or by contacting the FAA's Small Entity Contact
listed below.
If you are a small entity and have a question, contact your local
FAA official. If you do not know how to contact your local FAA
official, you may contact Charlene Brown, Program Analyst Staff, Office
of Rulemaking, ARM-27, Federal Aviation Administration, 800
Independence Avenue SW., Washington, DC 20591, 1-888-551-1594. Internet
users can find additional information on SBREFA in the ``Quick Jump''
section of the FAA's web page at http://www.faa.gov and may send
electronic inquiries to the following Internet address: 9-AWA-
[email protected]
Background
History
Title 14 of the Code of Federal Regulations (CFR) part 107
prescribes security requirements of airport operators concerning access
control, law enforcement support, and the submission of airport
security programs for FAA approval. Title 14 CFR part 108 prescribes
security rules for U.S. carriers who must adopt and carry out an FAA
approved security program. As used in this document, the term ``air
carrier'' refers to U.S. air carriers conducting passenger-carrying
operations.
On October 3, 1995, the FAA issued a final rule on Unescorted
Access Privilege (60 FR 51854). The FAA issued the rule primarily in
response to the Aviation Security Improvement Act of 1990. The rule
requires a 10-year employment history investigation for certain
employees, including, if needed, a Federal Bureau of Investigation
(FBI) fingerprint-based criminal records check. These employment checks
must be performed for individuals who are granted unescorted access to
a security identification display area (SIDA) and individuals who
authorize others to have unescorted access. (See 14 CFR 107.25.) In the
preamble to the Unescorted Access Privilege final rule 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 after those incidents, has indicated
the terrorist activities are no longer limited to areas outside of the
United States. Intelligence information indicates that terrorists are
in the United States, working alone, working in ad-hoc groups, or
serving as members of established terrorist groups. In light of the
increase in terrorism in this country, the White House Commission on
Aviation Safety and Security (the Commission) identified a further need
to enhance security at our nation's airports. In its final report,
(``Final Report to President Clinton--White House Commission on
Aviation Safety and Security,'' February 12, 1997), the Commission
recommended that ``Given the risks associated with the potential
introduction of explosives into these [airport] areas, * * * screeners
and employees with access to secure areas [should] be subject to
criminal background checks and FBI fingerprint checks.''
In section 304 of the Federal Aviation Reauthorization Act of 1996,
Pub. L. 104-264 (the Act), the Congress directed the FAA to expand the
use of both employment history investigations and fingerprint-based
criminal records checks. Section 304 of the Act directs the
Administrator to issue regulations requiring employment history
investigations and, as needed, criminal record checks for individuals
who screen passengers and property that will be carried in an aircraft
cabin in air transportation or intrastate air transportation. The
regulations would also apply to supervisors of screeners. The Act also
provides that Administrator with the discretionary authority to apply
these investigations to individuals who exercise security functions
associated with cargo and baggage. In addition, section 306 of the Act
directs the Administrator to provide for the periodic audit of the
effectiveness of the criminal record checks. The FAA believes that the
[[Page 51205]]
measures mandated by Congress will help ensure the integrity of the
airport environment.
In related security measures the FAA, on August 1, 1997, issued two
NPRMs: Airport Security (62 FR 41760) and Aircraft Operator Security
(62 FR 41730). These notices proposed to amend the existing Airport
Security and Aircraft Operator Security rules in 14 CFR parts 107 and
108. In addition these amendments would revise certain applicability
provisions, definitions and terms; reorganize these rules into subparts
containing related requirements; and incorporate some requirements
already implemented in airport and air carrier approved security
programs. The comment period on both proposals was extended to June 26,
1998 (63 FR 19691, April 21, 1998). Neither of these proposals
addresses employment history, verification, and criminal records
checks. If these NPRMs become final rules then Sec. 107.31 would be
renumbered as Sec. 107.207 and Sec. 108.33 would be renumbered as
Sec. 108.221.
General Discussion of the Rule
On March 19, 1997, the FAA issued an NPRM proposing to revise the
requirements for an Employment History, Verification and Criminal
Records Check in Secs. 107.31 and 108.33 (62 FR 13262). In the notice
the FAA proposed to extend the requirement for employment history
investigations to persons who perform checkpoint screening functions at
airports and their supervisors. The addition of screeners only affects
part 108. The FAA also proposed to require airport operators and air
carriers to audit the employment history investigations that they
perform under Secs. 107.31 and 108.33, respectively.
A new term appears in this final rule. The NPRM used the term
``tenant.'' The FAA determined that the term ``tenant'' was not
accurate for the purposes of proposed Sec. 107.31. The FAA has defined
the new term ``airport user'' for the purposes of Sec. 107.31 only.
``Airport user'' means those employers, not subject to Sec. 108.33,
whose employees seek unescorted access privileges to the SIDA. An
airport user may include those companies that do not have business
offices at the airport, but require access to the airport's SIDA.
Screeners are the responsibility of air carriers.
The FAA received 27 comments on the NPRM. A summary of those
comments and an explanation of changes made in the final rule in
response to those comments appear below under ``Discussion of
Comments.'' Significant changes between the NPRM and the final rule
include the following:
1. Section 107.31(p), Airport user responsibility, was added to the
final rule to accommodate other changes related to comments received.
Several comments to the NPRM stress the difficulty the airport
operators would have in maintaining the investigative files for all
individuals with unescorted access. In the final rule, Sec. 107.31(p)
allows airport users to maintain the employment history files after the
airport operator has performed a preliminary review.
2. Section 108.33(m), Air carrier responsibility, was added to
clarify for air carriers the designations of responsibility necessary
for compliance with this rule. This section recognizes the extent of
the air carriers' responsibilities with respect to their employees and
security screeners.
3. The FAA has reorganized the employment history investigation by
dividing the investigative process into Part 1 and Part 2. This
clarification, which does not substantively change the requirements,
was added to both Secs. 107.31 and 108.33. Part 1 of the employment
history investigation entails a review of the employment record of the
individual for the past 10 years, and verification of the most recent 5
years of employment. This portion of the employment history
investigation may be performed by an airport user, or in the case of
air carriers by a screening company. Part 2 of the investigation is a
fingerprint based criminal record check. If Part 1 reveals certain
questionable items (triggers), such as an unexplained 12 month gap in
employment, Part 2 must be performed. It is important to understand
that Part 2 of the investigation only occurs if there is a triggering
event discovered during Part 1 of the investigation and the employer
and the individual agree to go forward with the fingerprint check. If
the airport user chooses not to continue, or if the individual when
requested chooses not to submit fingerprints, then the employment
history investigation will stop and the individual will not be eligible
for unescorted SIDA access or to perform or supervise screening
functions.
Discussion of Comments
A total of 27 comments were received in response to the NPRM.
Commenters include airport operators, air carriers and their respective
associations, pilot associations, cargo companies, screening companies,
and food service companies. While most commenters support the intent of
the proposed rule to improve airport security, many commenters disagree
with specific aspects of the proposal. Comments are discussed in detail
below.
1. Scope (Secs. 107.31(a) and 108.33(a))
The FAA proposed a clarifying amendment (Sec. 108.33(a)(2)) to
ensure that an employment history investigation be completed for each
individual issued an air carrier identification badge that is
recognized as ``airport accepted'' media. By recognizing the air
carrier badge the airport operator authorizes unescorted access
privileges for that individual. Additionally, the FAA proposed
(Sec. 108.33(a)(3)) expanding the applicability of the employment
history investigation requirement to include (a) individuals performing
screening functions associated with persons and property entering the
aircraft cabin, and (b) individuals holding the two immediate
supervisory positions above the screeners. This section continues to
apply to those individuals who currently have unescorted access
privilege.
Some comments address the issue of airline issued media. Two
commenters state that if an individual has airline issued access media,
that media should allow access to SIDAs regardless of whether it was
issued at the individual's home airport. One commenter states that
flight crewmembers should be able to use their company identification
for access to the SIDA. Another commenter states that all air crews
should be required to carry airline issued media and that the
background checks and audit provisions should apply to such media.
One commenter suggests that the 10-year background check apply to
issuing officers of airport tenants and contractors, including
screening companies.
One commenter suggests that airport tenant service providers should
be allowed to voluntarily obtain a certified standard security plan
from the FAA in the same manner currently available to freight
forwarders and cooperative shipper's associations. Such an approach
would allow the security programs of tenants to be certified by the FAA
in the same manner as an air carrier's, thereby streamlining the
administrative process for airport contractors and their tenants.
FAA Response: It is the FAA's intent that the current practice of
recognizing air carrier media by various airport operators as ``airport
approved'' media be continued. The purpose of Sec. 108.33(a)(2) is to
maintain the current
[[Page 51206]]
practice and to ensure those air carrier employees who are extended
such privileges have also undergone the same employment history
investigation as others who have SIDA access.
The FAA does not require the creation of an ``issuing officer'' nor
is there a clear understanding of what exactly the job duties are for a
person holding such a position. Since the airport operator is the only
approval authority for granting unescorted access the regulation covers
those that might be granting such access on behalf of the airport.
Several airport operators are requesting that airport users limit the
number of persons who may sign a certification on behalf of that
company. This makes sense from operational standpoint; however; it is
FAA's view that this representation is only indicating the
investigation has been conducted. The representative is not granting
unescorted access on behalf of the airport operator. If in fact the
airport user's representative is granting of authorizing unescorted
access, the rule requires an employment history investigation for this
person under Sec. 107.31(a).
The NPRM was published to address employment history investigations
and not for addressing the creation of tenant security programs;
therefore the final rule does not address such programs. This issue was
addressed in the Airport Security (62 FR 41760) and Aircraft Operator
Security (62 FR 41730) NPRMs and will be further addressed in
subsequent documents resulting from the NPRMs for Airport and Aircraft
Operator Security.
The FAA will continue to evaluate all elements of the civil
aviation security system to determine if further changes are warranted.
2. Grandfathering of Current Employees (Secs. 108.33(a) (3) and (4))
The FAA proposed that all screeners hired after the effective date
of the new regulations would be required to have an employment history
investigation (Sec. 108.33(a)(3)). Retroactive background checks were
proposed in Sec. 108.33(a)(4) for individuals who were hired before the
effective date of the rule and who remain employed for a year after the
effective date.
A number of commenters, including National Air Transportation
Association (NATA), Regional Airline Association (RAA), Air Transport
Association of America (ATA), and Air Line Pilots Association (ALPA),
say that requiring employment background checks on current screening
personnel and supervisors is not justified because these employees have
already undergone a 5-year verification check and on-the-job
observation. According to these commenters, the proposed requirement
would add unnecessary costs and paperwork without increasing aviation
security. The commenters believe these individuals should be
grandfathered into the final rule at its effective date.
Two commenters, Airports Council International and American
Association of Airport Executives (ACI-NA and AAAE), state that
airports which have proactively applied Sec. 107.31 to security
screeners should not have to reissue/revalidate access media nor do a
second background investigation for these screeners.
ALPA states that the current rule applies only to those individuals
seeking authorization for unescorted access privileges, and not to
those who were employed before January 31, 1996.
One commenter requests clarification that Sec. 108.33(a)(2) is not
a retroactive requirement.
One commenter states that it should be made clear that
Sec. 108.33(a)(2), extending background investigation to each
individual who is issued an air carrier identification badge that is
accepted by an airport for unescorted access, applies only to flight
crewmembers and other employees hired after the effective date. A
retroactive application would impose very significant administrative
burdens and costs on carriers.
Another commenter states that employees with access to the SIDA
were grandfathered when the Access Investigation rule went into effect,
therefore, the time frame for compliance with the proposed rule should
be shortened.
FAA Response: The FAA has reconsidered its proposal to require
currently employed screeners to undergo the employment history
investigation. The FAA agrees with the commenters who state that
requiring employment history investigations of current screening
personnel and supervisors who have already undergone a 5-year
verification check and on-the-job observation would add more costs and
paperwork without providing a comparable increase in airport security.
Further, because of the typically high turnover rates, much of the
screener population will have been subjected to the expanded employment
history investigation within a relatively short period. Therefore, the
FAA concludes that air transportation security does not require the
retroactive application of this rule to current screeners and their
supervisors.
In response to the commenter requesting clarification about
Sec. 108.33(a)(2), the FAA confirms that it is not retroactive. This
change was proposed in the NPRM and will become effective upon the
effective date of this final rule.
In response to the commenter questioning whether the grandfathering
provisions of the access investigation still apply, this rule does not
change that grandfather provision. Those individuals having unescorted
access prior to January 31, 1996, were grandfathered and this status
will continue.
3. Employment History Investigation (Secs. 107.31(b)(1) and
108.33(b)(1))
The FAA proposed replacing the term ``access investigation'' with
``employment history investigation,'' The 10-year employment history
review and the 5-year verification requirements would remain unchanged,
although the scope of application would be expanded to include
screeners and supervisors regulated under Sec. 108.33(a)(3).
While one commenter supports the terminology change, another
recommends that the existing terminology, ``access investigation'' be
retained because it is understood that the rule applies to those who
may not have access to the SIDA. Also, this change would increase
paperwork costs, as well as training costs.
This commenter further states that the workforce will experience
stress and fatigue due to the delays from expanded background checks.
This, in turn, will result in more safety problems, as well as the
movement of potential workers away from this industry and towards
comparable paying jobs with no such delays.
One commenter recommends that checkpoint screeners undergo the same
employment background investigations as regular law enforcement
officers including performance of a criminal record check both on
National Crime Information Center (NCIC) and local records.
NATA says that the FAA must clarify which carrier would be
responsible for conducting the required checks in cases where several
carriers share a security checkpoint. The commenter also seeks
clarification in cases where control of the checkpoint changes from one
carrier to another.
FAA Response: In response to comments that the term ``access
investigation'' not be changed due to the costs of changing application
forms and retraining personnel on the terminology, the FAA did not and
is not currently requiring a title be placed on any regulated parties
application. The FAA purposely did not require the
[[Page 51207]]
development of any new forms with the Access Investigation, but
indicated the required information could be added to the employers'
current applications. This final rule adopts the language as proposed.
In response to the commenter who believes that the workforce would
experience stress and fatigue due to delays from the expanded
background checks, the FAA does not agree that these requirements will
result in delays that might cause stress on the industry. The
employment history investigations have not been expanded and the
process remains the same as it was before. The new population being
added to the 10-year investigation will soon find the process routine
and will view it as another step to take prior to performing screener
functions.
In response to the comment requesting that screeners undergo the
same background check as law enforcement officers, the FAA does not
equate screeners with law enforcement officers. Additionally, the FAA
notes that regulated parties are free to determine, within the law, any
standard pre-employment qualifications deemed necessary for their
needs. After an individual has successfully met those requirements,
then the individual would be subject to the FAA regulations that apply
to the position.
In response to NATA's concern about several carriers having
responsibility at one checkpoint, the FAA assures the commenter that
these situations will be handled in the same manner they are currently
being addressed for other regulatory issues. The FAA will rely on the
air carriers, their principal security inspectors, and local FAA agents
to continue to determine the best methods to address compliance with
these regulations.
The FAA has clarified in the final rule the requirements in Secs.
107.31(b)(1) and 108.33(b)(1) by explaining that this portion of the
employment history investigations be referred to as Part 1. Part 1,
which is the 10-year employment history and 5-year verification, must
always be conducted. For reasons discussed in section 6 of the
Discussion of comments, the National Crime Information Center (NCIC) is
not available for implementing this rule.
Part 2 of the 10-year employment investigation is addressed in
Secs. 107.31(c)(5) and 108.33(c)(5). Part 2 consists of the criminal
records check and is required only when a trigger has been met, but
will not be conducted unless both the employer and the affected
individual agree to proceed with the process.
4. Disqualifying Crimes (Secs. 107.31(b)(2) and 108.33(b)(2)
The FAA did not propose any changes to the list of disqualifying
crimes; however, some commenters requested changes to the list of
disqualifying crimes.
Commenters recommend that the list of disqualifying crimes be
expanded to include the manufacture, possession and use of controlled
substances and crimes such as strong arm robbery, theft, auto theft,
and burglary in order to more closely mirror the crimes listed in Part
1 of the Uniform Crime Reporting Act.
One commenter suggests that any felony conviction or arrest should
preclude employment in security checkpoint positions.
FAA Response: The FAA did not propose and is not expanding the list
of disqualifying crimes in this final rule. If regulated parties want
to add anything to their pre-employment standards they may do so. The
FAA is aware that several airport operators and air carriers regularly
conduct local criminal record checks and it is under the authority of
state or local law that such checks are conducted. The FAA encourages
the recognition by all employing parties of the distinction between
their pre-employment standards and qualifications, which are separate
from FAA regulations.
5. Investigative Steps (Secs. 107.31(c) and 108.33(c)
The FAA proposed no substantive changes to these sections, however,
one commenter requests that the FAA clarify the language of proposed
Sec. 107.31(c)(4), which requires the airport operator to verify the
information on the most recent 5 years of employment history. The
commenter believes that the airport operator is required to have final
responsibility for this function but is not required to verify every
single background investigation done by employers.
Another commenter states that the current employment verification
process is not effective because of the high turnover rate in the
industry. It is difficult and time consuming to verify if an
applicant's supervisor has left the company.
For these reasons and because the rule in intended to prevent
individuals convicted of disqualifying crimes from obtaining access to
the SIDA or from performing security functions, NATA recommends that
verifications be used to ascertain that an individual was not
incarcerated in each one-year period. This will allow affected
companies to meet the intent of the regulations by determining if a
disqualifying crime has been committed.
NATA adds that former employers will limit the employee information
they provide out of fear of lawsuits from employees originating from
the transfer of records, and that would be counterproductive to
enhanced security.
Several commenters, including ACI-NA and AAAE, request that the FAA
clarify the employment verification process and state what it considers
to be acceptable verification. These commenters recommend that the
employment verification process be standardized to ensure consistency
among FAA regional security offices.
FAA Response: The proposed rule language has been modified in the
final rule to refer to the first stage of the employment history
investigation, paragraph (C)(1)-(4) as Part 1. Paragraph (c)(1) lists
the information that the individual must provide on the application.
The final rule does require the airport operator to verify the
information on the most recent 5 years of employment history. The
airport operator is responsible for ensuring that the verification has
been completed. The verification is a portion of the investigative
process. The verification may be completed by the airport user, which
the airport operator may accept through the certification.
There are many avenues that may be used in the verification
process. The fact that the applicant's former supervisor is not
available does not mean that the owner or other supervisors of the
company could not vouch for the applicant. Persons other than the
immediate supervisor presumably have access to company employment
records.
It is unclear to the FAA why former employers are hesitant to
provide past employment dates. It is not known to be a basis for a
lawsuit to confirm employment dates. The FAA suspects that liability
issues arise when there are more than just past employment dates that
are being requested. To be in compliance with this regulation only the
confirmation of employment dates is required. The employment history
information required by this final rule from former employers is the
same as required by the current rule.
This final rule was not intended to address the specifics of the
verification process. Future FAA guidance may be provided in another
forum in order to respond to the questions pertaining to the
verification process and acceptable documentation.
[[Page 51208]]
6. Triggers/FBI Fingerprint Check (Secs. 107.31(c)(5) and 108.33(c)(5))
The FAA proposed only an editorial change to the list of
``triggers.'' No additions to the current criteria were proposed.
NATA states that if the airport tenant who is hiring an individual,
covered by the background check rule, does not receive any of the FBI
information, how can that airport tenant employer be ``protected * * *
from future liability?'' For example, if a potential employee has no
disqualifying crimes, but has several convictions for theft, the
business wanting to hire this person as a baggage handler would be
unaware of this record.
One commenter advises the FAA that a criminal records check does
not provide information on individuals who have resided outside the
U.S.
Several commenters state that the 54-day estimate for the FBI
fingerprint check is excessive and costly. One commenter says that the
FAA should ensure that the fingerprint check is completed within 30
days. Another commenter adds that after 30 days it is no longer viable
to keep a new hire on its payroll doing work that does not require
unescorted SIDA access.
FAA Response: As stated, the proposal did not change the
requirements other than extend them to screeners and screener
supervisors.
In response to the commenter requesting access to FBI criminal
records information for airport tenants, the FBI does not allow such
access. The FBI criminal record information may be used only for the
purposes of this rule as stated in Sec. 107.31(i). The FAA does not
have the statutory authority to provide access to FBI criminal records
to anyone other than air carriers and airport operator.
In response to the commenter stating that a criminal records check
does not provide information on individuals who have resided outside
the U.S., the FAA agrees with respect to convictions in foreign
countries. The criminal records check will provide information on
individuals convicted in the U.S. of crimes regardless of where they
currently reside. If an individual has been convicted of a crime
outside the U.S., obtaining that criminal record is beyond the FAA's
current statutory authority.
The FAA has received many telephone calls regarding the current
Secs. 107.31(c)(5) and 108.33(c)(5). Many believe the employer is
directed or authorized to conduct a criminal records check of all
employees/potential employees. The FAA cannot stress enough that the
regulated parties are not to submit fingerprints for a criminal record
unless such action has been triggered by one of the conditions listed
in Secs. 107.31(c)(5) and 108.33(c)(5). However, even with a triggering
event the criminal record check may not occur if either the employer or
the employee/potential employee chooses not to go forward with the
process.
In order to assist those seeking to understand this regulation the
final rule has been amended to reference the fingerprinting process of
the employment history investigation as Part 2. If Part 2 of the
employment history investigation occurs, only part 107 airport
operators or part 108 air carriers are statutorily permitted to request
a comparison of fingerprints against criminal files maintained by the
FBI. Airport users or screening companies who wish to proceed with a
criminal record check for employees or potential employees will make
such a request of the FAA through the appropriate airport operator or
the air carrier.
The FAA has changed the wording in these sections to acknowledge
that not everyone has a criminal record. The final rule effects that
the submission of fingerprints are once collected will be compared with
the FBI's criminal files to see if a match exists and a criminal record
is available.
The FAA agrees with commenters who indicate the turnaround time for
receiving record information is too long. The FAA will continue in its
attempts to ensure a speedy return for all fingerprint cards submitted.
The FAA is confident that once an automated fingerprint processing
system is fully implemented, the turnaround time will greatly improve.
The FBI has indicated to the White House Commission on Aviation Safety
and Security that the turnaround time will be at most seven days.
The FAA will keep the regulated parties abreast of any developments
regarding the automated processing. Clearinghouse services may be
sought by the FAA to assist those regulated parties who will be
transitioning to automated fingerprint processing. The FBI determines
the cost of processing fingerprints and will notify the FAA of any cost
increases. The FAA will in turn notify the regulated parties of those
costs. For further discussion of this issue, see the Regulatory
Evaluation.
Regardless of the fingerprint processing utilized, either through
electronic transmission or not, the requirements of Secs. 107.31(c)(5)
and 108.33(c)(5) remain the same.
Several commenters brought up the use of the NCIC. Title 49 U.S.C.
Sec. 44936 states that ``if the Administrator requires an
identification and criminal record check, to be conducted by the
Attorney General, as part of an investigation under this section, the
Administrator shall designate an individual to obtain fingerprints and
submit those fingerprints to the Attorney General.'' There was not and
there still is not any intention of confirming criminal records by name
alone. As previously noted by the FAA and the FBI, the use of NCIC is
not a definitive means of identification and is not authorized to
satisfy the requirements of this rule.
7. Individual Notification (Secs. 107.31(d) and 108.33(d))
The FAA proposed requiring the regulated party to identify a point
of contact when it notifies an individual that a criminal records check
will need to be conducted.
One commenter recommends that this section specify how the affected
individual should be notified prior to commencing the criminal records
check, i.e., should notification be in writing and be acknowledged by
the affected individual in writing and by signature.
FAA Response: The FAA believes that oral notification should be
adequate, but understands that some regulated parties may choose to
handle such a matter with written notification and acknowledgement by
the affected individual. This business decision is not appropriate for
and will not be addressed in this final rule.
8. Fingerprint Processing (Secs. 107.31(e) and 108.33(e))
The FAA proposed changing paragraph (e)(1) (formerly paragraph
(i)(1)) to clarify that only fingerprint cards approved by the FBI and
issued by the FAA may be submitted. A change to paragraph (e)(5) was
proposed to reflect the increase in the processing cost. The proposed
paragraph did not state an actual dollar amount. The FAA also proposed
that the applicable fee would be provided through the local FAA
security offices.
ACI-NA and AAAE state that the first sentence of Sec. 107.31(e)
should read ``If finger-print based criminal history check is required
pursuant to paragraph (c)(5), the airport operator * * * *'', to ensure
that it is understood that fingerprints do not need to be taken until
indicated by one of the triggers.
The same commenter states that obtaining fingerprints under the
direct observation of the airport operator or law enforcement officer
is inconvenient for those airports without on-site
[[Page 51209]]
facilities. It should be acceptable to utilize local police department
personnel whose activities and expertise are acceptable by local, state
and federal courts.
Two commenters, including ACI-NA and AAAE, express concern that FAA
local offices might add charges to the rate of processing fingerprints.
One of the commenters proposes that a flat rate be retained or that
changes in the future be implemented only after a public hearing or
formal consultation with air carriers.
One commenter states that the FAA and FBI should work together to
expedite development of and direct access to the FBI's Integrated
Automated Fingerprint Identification System (IAFIS) by law enforcement
agencies supporting airports.
FAA Response: The lead-in sentence of Secs. 107.31(e) and 108.33(e)
has been changed in the final rule to clarify that the fingerprint
processing requirements must be complied with ``if a fingerprint
comparison is necessary'' under Secs. 107.31(c)(5) and 108.33(c)(5). A
fingerprint comparison, Part 2 of the employment history investigation,
is required only if one of the triggering conditions occurs in Part 1
of the employment history investigation.
Local police departments are considered law enforcement officers
and by current regulation may assist in the collection of fingerprints.
This option has not been changed in the final rule.
As stated earlier the designated rate for processing each
fingerprint card is determined by the FBI, conveyed to the FAA and will
be passed on to the regulated parties. The FAA does not add any of its
own administrative costs or user fees. When the FBI determines an
increase is necessary it will formally notify the FAA. The FAA national
headquarters will receive information on fees and forward it to the
regulated parties via the local security field offices. The cost is
determined by the FBI and is not negotiable.
The purpose of having the local FAA security offices advise the
regulated parties of the fee is to prevent the need to go through the
prolonged process of rulemaking to make such an announcement. Fees are
periodically changed by the entities providing the services.
Regarding the comment on providing expedited access to law
enforcement agencies supporting airports to the FBI's IAFIS, the FAA is
aware such work is in progress. However, the law enforcement officer's
access to IAFIS exists for law enforcement purposes only and is not
accessible for employment history investigations.
9. Determination of Arrest Status (Secs. 107.31(f) and 108.33(f))
The proposed rule made no changes to the current requirements in
Secs. 107.31(f) (formerly paragraph (j)) and 108.33(f). No comments
were received on these requirements.
10. Corrective Action by Individuals (Secs. 107.31(h) and 108.33(h))
The FAA proposed no substantive changes to Secs. 107.31(h)
(formerly Sec. 107.31(k)) and 108.33(h) (formerly Sec. 108.33(g)). No
comments were received on these requirements.
11. Employment Status While Awaiting Criminal record Checks
(Secs. 107.31(j) and 108.33(j))
The FAA proposed for Sec. 108.33(j) that those individuals applying
for screening functions and screening supervisory positions would not
make independent judgments until their employment history
investigations are completed which includes a criminal record check if
needed. Sections 107.31(j) and 108.33(j) simply restate the current
requirement to escort those who are seeking, but have not yet been
cleared for unescorted SIDA access.
Several commenters express concern that escorting newly hired
workers who are awaiting clearance will put a burden on current
employees, especially if staffing shortages occur.
One commenter says that the meaning of Sec. 108.33(j)(2), ``* * *
applicants * * * must not exercise any independent judgments regarding
those functions'' is unclear and that it should be rewritten.
FAA Response: The FAA believes that some commenters have
misunderstood the requirements for initiating a criminal record check.
Only those persons who meet at least one of the triggers are required
to submit fingerprints for a criminal record check (Part 2) in order to
further pursue their considerations for performing screening functions.
The FAA assumes this will not be the typical case. If the individual
has no need for criminal record check, then the only waiting period is
for the completion of the employment history verification portion (Part
1).
In response to the request for clarifying the language that
screeners ``shall not exercise any independent judgments. * * *'',
the FAA refers the commenter to that portion of the security program
dealing with initial training of screeners for further
clarification.
12. Recordkeeping (Secs. 1.07.31(k) and 108.33(k))
The FAA proposed that only direct employees of airport operators
and air carriers may carry out responsibilities related to requesting,
processing, maintaining and destroying criminal records.
Several commenters, including ACI-NA and AAAE, disagree with the
proposal requiring criminal record responsibilities to be carried out
by direct airport operator employees, excluding contract personnel. One
commenter states that this proposal will prevent airports from
continuing to use law enforcement officers, which clearly does not
compromise security.
The same commenters state that precluding the use of contractors
will impinge upon the airport operator's authority to carry out a
federal mandate in a confidential, efficient and economic manner.
One commenter petitions the FAA to request reconsideration by the
FBI and to strike this limitation.
ACI-NA and AAAE request that the regulation contain an acceptable
method of destruction of criminal and employment background
investigation files.
NATA recommends that the FAA ``seek the same legislative solutions
as found in the Pilot Records Act'' to protect past and prospective
employers subject to liability that is associated with the sharing of
sensitive information.
One commenter asks if the airport operator must obtain records for
only those employees of tenants who have had the criminal record checks
performed or for all employees of tenants with SIDA access.
Another commenter states that the NPRM should be more specific in
defining ``where the air carrier's responsibility for file maintenance
begins and the airport operator's ends.'' Also clarification is needed
about whether the air carrier or airport operator will be responsible
for maintaining the files of an air carriers' sub-contractors and sub-
tenants.
FAA Response: In response to commenters' desire to use contractors
the FAA has not changed the final rule concerning the handling of
criminal records by direct employees only. The information contained in
the criminal records is under the custody of the FBI and they determine
how the information will be handled. The FAA has been in contact with
the FBI to confirm this limitation regarding the handling by direct
employees. The FBI restrictions are contained in FBI regulations and
modifications to FBI interpretations are not currently being
considered.
Furthermore, with respect to using contractors since the regulation
requires a criminal record be processed through the FAA it remains
unclear what
[[Page 51210]]
services a contractor is providing to the regulated parties that are
necessary for compliance with this regulation.
In response to the comment about destruction of criminal records
the FBI does not currently have a standard regarding the destruction of
those records. With respect to destruction of employment history
investigation files the FAA does not generally prescribe means of
destroying records no longer necessary for regulatory compliance.
Discussion with the local FAA offices might be beneficial to determine
a means of appropriately destroying both types of records.
With respect to NATA's recommendation the FAA does not consider the
information needed for this regulation to be sensitive. This rule only
addresses the collection and confirmation of employment dates, which
are generally not considered confidential information. The FAA does not
agree that information required for this regulation necessitates
legislation.
Additionally, the contents of the investigative files should
contain only the information required for compliance with this
regulation. No personnel related materials, such as insurance papers or
training records need be included in the investigative file or other
information which might be construed as sensitive. The airport user is
strongly encouraged to redact information in the investigative files
that is not related to the requirements of this regulation. The FAA
believes that if only the information required for compliance with this
regulation is contained in the investigative file, then any concerns
about liability issues would be resolved. There is no requirement that
the airport user provide original paperwork to the airport operator,
however, the paperwork provided must be a truthful rendition of the
record.
The comment requesting clarification on the maintenance of files
for those contracted by the air carriers has been addressed in this
final rule. The FAA specifically holds the air carrier responsible for
the screening companies it hires to perform its screening functions.
The air carrier may delegate the performance and maintenance of Part 1
of the employment history investigation files to screening companies
but the air carriers remain responsible for compliance with this final
rule. Only the air carrier's direct employees are to maintain Part 2
investigative files.
For clarification on the maintenance of files the FAA would like to
point out for those airport operators who accept clarification from air
carriers, for screeners requiring unescorted access, that Part 1 of the
employment history investigation will be maintained by the air
carriers. Additionally, air carriers are required to conduct self-
audits and they are subject to regulatory audits performed by the FAA.
These audits are intended to assist air carriers with compliance
regarding this rule. Only air carriers, and not airport operators, have
the regulatory responsibility to conduct employment history
investigations on individuals seeking to perform screening functions
under this rule.
In this final rule the airport operator must, at the time it
accepts a certification, collect the completed investigative file and
either maintain or delegate through the certification, the maintenance
responsibility to the airport user. If the airport user maintains the
investigative file the rule requires the airport operator to conduct a
preliminary review of the file to ascertain that it is complete. The
preliminary review would lead to the rejection and return of those
files that appear to be incomplete. Any rejections due to
incompleteness should in no way inhibit re-submissions by the airport
user after the application has been completed. The preliminary review
is different from the auditing process where the investigative file is
assessed for accuracy and confirmation that the information was
verified.
The airport operator may accept a certification from the air
carrier, but need not receive the investigative file. The air carrier
is separately responsible under Sec. 108.33 for maintaining appropriate
employment investigative files.
13. Continuing Responsibilities (Secs. 107.31(l) and 108.33(l))
The FAA proposed that individuals who have been cleared for
screening or supervisory functions or unescorted SIDA access will be
obligated to report themselves to their employer if they are
subsequently convicted of any disqualifying crime. The FAA also
proposed that the tenant or contractor employer must report to the
airport operator or the air carrier that an individual may have a
possible conviction of a disqualifying crime. Additionally the FAA
proposed that once the airport operator or air carrier receives this
information it must determine the status of the conviction and take
appropriate action if the conviction is confirmed.
One commenter states that this proposal is meaningless because it
imposes no penalty on the individual for noncompliance. The employee
has more incentive not to report since a loss of SIDA access would
probably result in the loss of the employee's job.
The commenter also questions if the FAA is requiring that a
fingerprint check be done on individuals to investigate felony
convictions that may have occurred after the initial employment check.
FAA Response: The commenter is incorrect as there is potential for
a civil penalty under 14 CFR part 13 on this section as well as on all
sections of the security regulations.
The FAA understands that individuals who report themselves will
lose their unescorted access privileges. The FAA also is aware of the
potential for obtaining other positions at the airport that do not
require unescorted access privileges, many times with the same
employer. The same may not be true with those individuals seeking
positions as screeners.
There is no regulatory authority to request nor is there a
regulatory responsibility to obtain a fingerprint based criminal record
check after the initial employment check has been completed. However,
the airport operator and air carrier are obligated to comply with
Secs. 107.31(e)(2) and 108.33(e)(2) to determine if there is a
conviction. The FAA would also point out that a conviction of a felony
is not automatically disqualifying. Only a conviction of one of the
crimes listed in Secs. 107.31(b)(2) and 108.33(b)(2) is disqualifying.
In this final rule the FAA added Sec. 107.31(p)(1) which also
requires airport users to notify the airport operator if information
becomes available to them regarding a possible conviction of a
disqualifying crime of one of their employees.
14. Exceptions (Sec. 107.31(m))
The FAA proposed that the exception to the employment background
investigation requirement for individuals who have undergone a U.S.
Customs Service background investigation would no longer be recognized.
One commenter suggests that the proposal to remove the Customs
exception should result in a coordinated effort between the Customs
Service and the FAA to create one investigation process that would meet
the requirements of both agencies.
NATA states that the removal of the exception will result in a
redundant check for many employees requiring SIDA access that also
operate in Customs areas. NATA adds that the FAA needs to provide
further explanation why the Customs
[[Page 51211]]
background check no longer meets the requirements of the FAA
regulations.
ACI-NA and AAAE agree with the removal of the Customs exception and
states that the FAA should clarify that a new background check is not
necessary for those individuals who were authorized through acceptance
of the Customs Service background check before this rule takes effect.
FAA Response: Since publication of the unescorted access privilege
rule the FAA has determined that the Customs Service background checks
are not performed in a standard manner nationally. Customs regulations
do allow for variation. The FAA has made the determination that due to
the variation within the Customs Service the FAA will no longer
recognize the background checks performed by the Customs Service.
Since the Customs Service and the FAA serve different functions
having different missions and obligations it is unlikely that the two
agencies could mesh their requirements for one background
investigation.
Those individuals who were granted unescorted access based on the
Customs background check prior to the effective date of this rule will
be grandfathered as noted in Sec. 107.31(m)(4).
15. Investigations by Air Carriers and Tenants (Sec. 107.31(n))
The FAA proposed that when the airport operator chooses to accept a
tenant's certification the airport operator must collect and maintain
the entire employment history investigation file.
Several commenters oppose the proposal that airport operators
collect and maintain the entire history background investigation files
because it would impose substantial administrative, filing, storage,
and cost burdens on the airport operator, while offering minimal
security justification.
ACI-NA and AAAE state that this requirement will make the airport
operator liable for these records and their accuracy, which should be
the responsibility of the air carriers and tenants.
A commenter states that the proposal would require the
dissemination of confidential and personal information to more than one
hundred airports, increasing the possibility of unauthorized
disclosure.
RAA recommends that the employer maintain a copy of the background
employment investigation files at a central location while making them
available for FAA audit. This would meet the needs of the FAA and
protect the privacy of individual employees. Other commenters suggest
that airport tenants should maintain their employee background check
records at a location in the airport where they will be available for
random inspections by the airport operator or FAA.
Two commenters state that requiring the airport operator to
maintain and control written records for air carriers and their
contractors is redundant since air carriers are required under
Sec. 108.33(m)(1) to have such files available on-airport.
A commenter states that airport operators should not be responsible
for foreign air carrier compliance and that the FAA should audit part
129 operators. In addition, the FAA should audit and hold accountable
tenants with approved Tenant Agreements.
One commenter raises the issue of discrimination against foreign
flags since under Sec. 107.31(n) only foreign air carriers and tenants
would be required to provide an entire employment background
investigation file. The commenter asks whether this will be an
automatic audit of all foreign air carrier submissions.
One commenter asks if the airport operator must obtain records for
only those employees of tenants who have had the criminal records check
performed or for all employees of tenants with SIDA access.
Another commenter states that the NPRM is confusing because
Sec. 107.31(k) appears to require airport operators to retain air
carrier employment application and background investigation
verification records, while Sec. 107.31(n)(2) seems to require only
completed tenant
RAA recommends that the employer maintain a copy of the background
employment investigation files at a central location while making them
available for FAA audit. This would meet the needs of the FAA and
protect the privacy of individual employees. Other commenters suggest
that airport tenants should maintain their employee background check
records at a location in the airport where they will be available for
random inspections by the airport operator or FAA.
Two commenters state that requiring the airport operator to
maintain and control written records for air carriers and their
contractors is redundant since air carriers are required under
Sec. 108.33(m)(1) to have such files avialable on-airport.
A commenter states that airport operators should not be responsible
for foreign air carrier compliance and that the FAA should audit part
129 operators. In addition, the FAA should audit and hold accountable
tenants with approved Tenant Agreements.
One commenter raises the issue of discrimination against foreign
flags since under Sec. 107.31(n) only foreign air carriers and tenants
would be required to provide an entire employment background
investigation file. The commenter asks whether this will be an
automatic audit of all foreign air carrier submissions.
One commenter asks if the airport operator must obtain records for
only those employees of tenants who have had the criminal records check
performed or for all employees of tenants with SIDA access.
Another commenter states that the NPRM is confusing because
Sec. 107.31(k) appears to require airport operators to retain air
carrier employment application and background investigation
verification records, while Sec. 107.31(n)(2) seems to require only
completed tenant employment background investigation files to be
obtained by the airport operator.
A commenter requests that the FAA clarify that if the file is
incomplete and rejected, there is no liability for loss of employment
caused by the airport operator's action.
A commenter asks whether the original background investigation file
or merely a copy should be submitted to the airport operator and asks
``[i]f the original is submitted, will this then relieve the carrier of
the audit by the FAA?''
Another commenter states that the rule should be modified to
require airport operators to accept the air carrier's certification
that a background check has been performed. This commenter adds that
with the adoption of Sec. 108.14 carriers are fully liable for
falsification. Carriers should only have to conform to a single set of
regulations rather than different requirements of different
requirements at different airports.
FAA Response: In response to commenters who say they will suffer
economic hardship if they are required to maintain the employment
history files for all person granted unescorted access, the FAA has
modified these requirements in the final rule. When an airport operator
has accepted an airport user's certification, the airport operator then
conducts a preliminary review of the investigative files of those
individuals who are named in the certification. After the preliminary
review of each employment history file the airport operator may return
the file to the airport user to maintain as agreed to in the
certification. Consistent with common business practices, airport users
have the space, equipment, and the personnel to handle their normal
[[Page 51212]]
employment application paperwork. This rule requires certain
information be collected for compliance with Part 1 of the
investigative process. The FAA has viewed examples where the needed
information is provided in 4 pages or less. Therefore the FAA is
confident that the airport user will not experience any additional
burden in maintaining the paperwork required. Providing the airport
user with the opportunity to maintain Part 1 of the investigative file
should alleviate anyone's concern about liability. Given the
requirements of this regulation the required investigative file will
lack confidential and personal information normally associated with
employment applications.
It is true, however, that Part 2 of the employment history
investigation, when required, will be conducted for the airport users
entirely by the airport operator. So there may in fact be limited
filing for the airport operator; however it would be far less than the
NPRM had proposed.
Two commenters misunderstood the NPRM to state that the airport
operators would maintain the files of part 108 air carriers. This is
not the FAA's intent. The airport operator is not expected to handle
any air carrier investigative files kept in compliance with this rule.
The airport operator is only expected to keep the certification offered
to them by the part 108 air carriers regarding unescorted access
privileges. There is no expectation that the airport operator will
conduct a preliminary review of the air carrier investigative files.
The part 108 air carriers as regulated parties will be responsible for
all investigative files pertaining to those individuals granted
unescorted access.
The final rule also responds to comments concerning foreign air
carriers. The FAA's policy does not discriminate against foreign air
carriers. At the present time the FAA has no other means to reach the
part 129 air carriers other than to view them as airport users and it
is imperative that the security regulations apply to everyone who has
access to an airport. Accordingly, the final rule allows more
flexibility regarding the investigative files and offers relief to the
part 129 air carriers. The final rule will allow the part 129 air
carriers to maintain their own employees' files but keeps in place the
airport's authority to ensure only those individuals who have been
properly vetted will have access to the airport's SIDA. The final rule
will eliminate the need for making copies of the individual's
employment investigative file. The decision is up to the part 129 air
carrier to offer a certification regarding the completion of an
employment history investigation on an individual seeking unescorted
access and at the discretion of the airport operator to accept it. The
airport operator will conduct the procedures associated with Part 2
requirements for the part 129 air carriers, as it will do for other
airport users.
In response to the comment that there is discrimination against
foreign air carriers the FAA emphasizes that all investigative files
are subject to audits by the FAA to ascertain compliance with the
regulation.
Another commenter expressed concern about incomplete or rejected
files. In such instances the airport operator should advise the airport
user that the paperwork is incomplete so that the airport user and the
affected individual would then have an opportunity to complete the
paperwork. The air carriers are reminded that there is not obligation
for the airport operators to accept certifications. The final rule
states in Sec. 107.31(n) that the operators are in compliance when they
accept the certification.
Practical reasons dictate the employment history investigative
files for screeners be located at the airport and not the air carriers'
corporate offices. The main reason centers on logistics. The files need
to be available to local FAA agents with regulatory responsibility to
inspect records for compliance. Each location should therefore have an
air carrier representative named to handle the sensitive issues that
may arise relative to Part 2 of the employment history investigations.
16. Airport Operator/Air Carrier Responsibilities (Secs. 107.31(o)(1)
and (2) and 108.33(m)(1) and (2))
The FAA proposed no changes to the requirement that the airport
operator designate the airport security coordinator (ASC) responsible
for reviewing and controlling the results of the employment background
investigations and for serving as the contact to receive notification
from individuals of their intent to correct their criminal record. The
FAA proposed changing Secs. 107.31(g)(1) and (2) to Secs. 107.31(o)(1)
and (2).
The FAA proposed a new Sec. 108.33(m). Proposed paragraph (m)(1)
would require the air carrier to designate an individual at each
airport to control and maintain the employment background investigation
files for individuals for whom the air carrier has made a certification
to the airport operator. Proposed paragraph (m)(2) would require the
air carrier to designate an individual in its security program to
control the employment background investigation files of individuals
for whom the air carrier conducts investigations, including screeners
and their supervisors.
Comments received on proposed Secs. 107.31(o)(1) and (2) and
108.33(m) are as follows:
ACI-NA and AAAE states that the ASC should be permitted to
designate other airport security staff or security contractor staff to
fulfill the ASC role. The commenter states that it is not feasible at
many airports for one or two individuals to accomplish these tasks and,
therefore recommends that the words ``or designee'' be inserted after
``Airport Security Coordinator'' in Sec. 107.31(o)(1) and (2).
The same commenter states that airport tenants should be regulated
directly by the FAA rather than laying the entire security enforcement
responsibility for them upon the airport operators.
The same commenter adds that the ``legal implications and
liabilities associated with airport operating municipalities, states or
other entities becoming involved in the employment practices of private
companies should be fully explored.''
Another commenter recommends that part 107 require airlines to
declare a sponsor for the contractor who would be responsible for the
background investigations, audits and maintenance of its files.
Two commenters state that the proposed regulation does not clarify
who is responsible for ensuring that the background investigations and
audits are completed for contractors and screening companies who
service several different airlines at the same airport. According to
these comments, at many airports the responsibility of contracting with
a contractor falls on an informal ``consortium'' of multiple carriers,
or on individual airlines on a rotating basis. The comments suggest
that the FAA treat screening companies in the same manner as other
airport tenants by requiring each screening company to provide a
certification directly to the airport operator.
A commenter suggests that the regulations include a provision
permitting the air carriers to review, audit and exercise other
oversight functions regarding the airport operator's handling of the
screener background investigations. This would allow the air carriers
to discharge their responsibility to maintain ultimate control of the
screening function.
A commenter recommends that the FAA establish procedures for air
carriers to notify the FAA of central locations
[[Page 51213]]
where records are maintained; designate the corporate offices which
maintain the records; the required to make the records available for
FAA inspection; and be required to audit the employment background
investigations.
A commenter raised the issue of the threat of litigation against
air carriers resulting from disclosure and states that the files must
be kept in a secure location in the air carrier's human resources
office.
A commenter states that storing the background investigation files
should be the responsibility of the firm conducting the background
check. Another commenter proposes that the employment background
investigative records be kept on file by a FAA Central Records Office
to alleviate complications when a security cleared person changes jobs.
Another commenter states that, if the FAA decides to establish a
certification program for screening companies, those companies would be
permitted to receive criminal history information from the FBI and
could maintain their own background information files. The commenter
states that requiring the air carrier to receive personal and
confidential criminal history information dealing with the employee of
another company is both unreasonable and unethical.
One commenter supports the proposal in Sec. 108.33(m) that air
carriers designate an individual at each airport to maintain and
control employment background investigation files. Currently employment
background audit attempts by Air Authority police indicate that records
are usually maintained at each airline general office and are
inaccessible or not available for a timely review.
One commenter states that the rule should be modified to require
airport operators to accept the air carrier's certification that a
background check has been performed. Furthermore, with the adoption of
14 CFR Sec. 108.14 (sic), carriers are fully liable for falsification.
Carriers should only have to conform to a single set of regulations
rather than different requirements at different airports.
FAA Response: In response to the comment about permitting designees
to fulfill the role of ASC the FAA has already developed a policy for
the use of designees by ASCs. This policy remains in effect for this
final rule.
The FAA is unsure why ACI-NAA and AAAE believe the airport would be
liable for ``employment practices'' of private companies. The private
company may, within certain limits, employ anyone it wishes. The
federal regulations apply to those seeking to perform specific job
functions. If the individual cannot fulfill a specific job's
requirements, in compliance with the federal regulation, the company
may still employ the individual in another capacity. Therefore the
employability of the individual rests with the private company and not
the airport operator.
In addressing the comment about sponsorship the FAA understands
that some contractors may only seek unescorted access for one carrier
and for a short duration of time. The FAA's only concern is that one of
the regulated parties must be responsible for those individuals.
In response to the two comments regarding the issue of who is
responsible for airport users the FAA reiterates that the airport
operators are responsible for the security of the airport. The air
carriers are responsible for their direct employees and those screening
companies they hire to perform screening functions. Furthermore, it is
the airport operators' responsibility to conduct the employment history
investigations to perform the audits of any contractors other than
screeners. This regulation allows the airport operator to consider
contractors as airport users. This regulation likewise allows the
airport operator to maintain the employment history files of those
seeking unescorted access if the airport operator so chooses. The FAA
leaves to the discretion of the airport operator whether or not the air
carrier should take responsibility for certain contractors, other than
screeners. The FAA encourages discussion between the airport operators
and the air carriers regarding other air carrier contractors.
In response to which air carrier would be responsible for screening
companies servicing multiple air carriers at one airport the FAA
suggests that the air carriers use the same local procedures which are
currently used for other security compliance issues. If there is reason
to believe the same procedures cannot be used then it is recommended
that all pertinent parties meet to develop a new procedure which is
satisfactory to all, just as was done to create the current procedures.
It is the responsibility of the air carriers that hire screening
companies to conduct, audit and exercise requisite oversight functions
of the screening companies. The final rule states these
responsibilities in Sec. 108.33. Since the part 108 air carriers are
charged with maintaining employment history investigation files the FAA
will work closely with them regarding the exact location of the files.
The FAA wishes to clarify that nothing in this final rule requires or
authorizes the Airport Authority Police to audit screener employment
history investigative files.
One commenter indicated the investigative files should be the
responsibility of the firm that conducts the background check. The FAA
will assume this comment concerns those private companies that perform
pre-employment background checks for airport users. If those companies
are also performing Part 1 of the employment history investigations for
this rule they are doing so at the request of the airport users. If the
airport operator has delegated the conduct of Part 1 of the employment
history investigation to the airport user, then the user, under
certification, will maintain the files on behalf of the airport
operator. This rule does not address any further delegation for the
maintenance of Part 1 files. If certifications are accepted by the
airport operator certification requirements must be met. The
responsibility to delegate or not delegate maintenance of the
investigative files rests with the airport operator.
One commenter questioned why the FAA did not provide screening
companies with the authority to receive criminal records. Screening
companies are not authorized to have such access by 49 U.S.C. 44936.
This commenter also believed it was ``unreasonable and unethical'' for
a carrier to receive confidential criminal record information on
another company's employee. The FAA does not agree with this comment.
For a discussion of these issues see sections 6 and 12 of the
Discussion of Comments.
It was not the intent of the FAA in the unescorted access rule, nor
is it the intent of this rule, to require the airport operators to
review the employment history investigative files of air carrier
employees seeking unescorted access. The certification process was
intended to handle the request and granting of unescorted access
between air carriers and airport operators. However, the FAA will not
remove the airport operators' prerogative to protect its property. The
FAA audits and the air carrier's self-audits should supply sufficient
assurances that compliance with this regulation is being met. The FAA
encourages airport operators to rely on the air carriers'
certification.
The FAA has expanded the air carrier's responsibilities listed in
Sec. 108.33(m). This paragraph lists the points of contact required for
notifications and maintenance of Parts 1 and 2 of the employment
history investigative files for both direct
[[Page 51214]]
employees and screening company employees.
17. Audits of Background Investigations (Secs. 107.31(o)(4) and
108.33(m)(5))
Proposed Sec. 107.31(o)(4) would require the airport operator to
audit the employment background investigations performed in accordance
with this section, except those employment background investigations of
air carriers certifying to the airport operator compliance with
Sec. 108.33(b). Proposed Sec. 108.33(m)(5) would require the air
carrier to audit the employment background investigations. The audit
process would be set forth in the air carrier approved security
program.
Many comments were received on the audit requirements. Most of the
comments expressed a concern that entities should be required to audit
only those investigations concerning their own personnel.
ATA and ACI-NA and AAAE believe that the FAA should audit airport
operators, air carriers, and screening companies, once they are FAA
certificated, independently for compliance with the regulations.
According to commenters, a FAA audit would ensure that audit procedures
do not vary among regions and agents.
Some commenters state that requiring regular audits of all
background investigations would be time consuming and costly with no
corresponding increase in security.
FAA Response: The FAA's intent is to ensure a means of evaluating
employment history investigations records and to confirm the validity
and accuracy of the information they contain.
In addition to the self-audits, required by 49 U.S.C.
Sec. 44936(a)(3), the FAA will also be conducting audits of airport
operators, and air carriers. Screening companies will be audited by the
responsible air carriers. FAA audits when conducted on screening
companies will be considered as part of an audit on the responsible air
carrier.
The FAA has carefully considered all comments on the audit
requirements. Most of these comments are specific and apply to the
self-audit procedures that will be set forth in the air carrier and
airport approved security programs. The FAA will provide an opportunity
to comment on the specifics of the audit process in accordance with
Secs. 107.11 and 108.25.
Section 306 of the Act also directs the FAA to provide for the
periodic audit of the effectiveness of the criminal records checks. The
FAA in its oversight capacity has previously conducted audits and will
continue to conduct audits on employment history investigations. The
FAA views self-auditing as a valuable tool which can assist the
regulated party in effective rule implementation. The final rule
requires air carriers and airport operators to audit their employment
history investigations. The self-audit requirements apply to both Part
1 and Part 2 of the employment history investigation.
This final rule provides, in general terms, information on audits
to be conducted by regulated parties on employment history
investigations. The audit functions pertaining to the employment
history investigations have important security benefits; however, for
security reasons, the exact auditing procedures cannot be described in
a public document. Therefore the specific requirements regarding the
audits will be proposed as amendments to the security programs.
18. General--Cargo and Baggage Operations
The FAA requested comments on whether to expand the employment
history investigation requirement to include persons who perform
security functions related to cargo and baggage outside of the SIDA. In
general, commenters who responded to the FAA's question opposed such an
expansion, and several stated that to include such a requirement in a
final rule would violate the Administrative Procedures Act.
FAA Response: While Section 304 of the Act provides the
Administrator with discretionary authority to require employment
history investigations for other individuals who exercise security
functions associated with baggage or cargo, the FAA did not propose to
expand the requirement for such investigations beyond checkpoint
screeners and their supervisors. As explained in the preamble to the
proposed rule most air carrier baggage and cargo personnel currently
have unescorted access to the SIDA and thus are currently subject to
access investigations.
If the FAA had received comments supporting the inclusion of those
who perform security functions outside the SIDA, related to cargo and
baggage, the FAA would have addressed that concern in a separate NPRM.
However, comments were insufficient to support the need for an
additional proposal. Therefore, the FAA has decided not to expand the
requirement.
19. Summary of Economic Comments
This section summaries the economic comments and the FAA's
responses. A detailed discussion of these comments and responses is
contained in the full regulatory evaluation in the docket for this
final rule.
a. Comments related to extending criminal background checks for
screeners. Two commenters state that the FAA's use of 54 days for the
length of time to perform fingerprint checks was underestimated. These
commenters believe that the actual length of time is longer, and should
be reflected in the costs.
Two commenters also state that the assumption, based on the
historical record, that only 0.4% of the applicants would need to be
fingerprinted and a negligible amount would have a prior criminal
conviction was inaccurate. These commenters believe, based on personal
experience, that both estimates should be higher.
One commenter believes that the estimate of $55 for total staff
time and supplies is too low, given all that is required.
Two commenters request that the FAA make clear who is paying the
cost of fingerprint processing and that the local FAA offices are
charging the correct rate.
One commenter, a catering company, does not believe that escorting
a new hire for more than 30 days is viable. Another commenter,
representing an airport, says that if the verbiage on criminal history
background check document forms is changed, there would be increased
costs due to paperwork changes.
FAA Response: The FAA cannot consider each airport's turnaround
time individually, and will continue to use the national average for
purposes of costing the rule. The FAA agrees that a 54 day processing
time is too long, but has no means at its disposal to shorten it.
The rates used, of 0.4% and 0.0%, were based on a review of the
data on the results of the first eight months of the current
Secs. 107.31 and 108.33, from February through September 1996. Neither
commenter submitted any data or documentation showing rates different
than these, so the FAA will continue to use these rates.
Much of what the commenter believes should be considered are not
required; the economic analysis costed out those parts of the proposed
rule that would add cost.
Regarding who pays what section of the cost of fingerprinting, the
FAA is required by Executive Order to look at all costs to society and
made clear, in its analysis, who would pay what. With regards to the
cost of the criminal record checks, the FAA does not have control
[[Page 51215]]
over the cost of this process, so everyone needing fingerprinting would
pay the same standard rate.
With regards to escorting employees, the FAA believes that
conditions and requirements would be different for screeners than for
caterer employees and that the ability for a screener to work
supervised would be viable past 30 days. There are no document title
requirements in the Regulations; hence, there would be no requirement
to change any verbiage on the forms.
b. Comments related to removing the exemption that substitutes a
U.S. Customs Service (USCS) background check for a check based on the
requirements. A trade organization states that some airports report
that up to 60% of air carrier employee SIDA access media, plus a much
smaller percent of airport employees, were authorized through
acceptance of the USCS background check. Accordingly, this change could
be costly.
FAA Response: The FAA called for comments on the number of airport
employees who currently were granted unescorted access due to a
background check from the USCS. This was the only response, and is too
vague to help project cost data. There will be no additional costs due
to removing this exception.
c. Comments related to the requirement that the airport operators
and air carriers review the employee background documentation of their
own employees as well as any appropriate contractors or, in the case of
airports, airport users. Four commenters state that the requirement for
specific airport personnel to review the employment history check
documentation would increase their paperwork requirements, and would
require hiring of more employees and finding additional storage space.
There were several comments on the assumption (in the economic
analyses) that 5% of all employment history investigations would be
checked. These commenters believe that the FAA underestimated total
costs, in part due to a belief that the actual amount checked would be
greater than 5% as airports would want to check employees and avoid
potential liability problems.
One commenter contends that the costs associated with collecting
and filing records should be in the cost analysis, but are not.
FAA Response: The final rule will allow for the option that the
airport user could hold the required paperwork for their employees;
this would relieve the airport operator from having to maintain,
collect, and process the entire employment background investigation
file for each employee. Hence, airports will not need to hire
additional personnel or find additional storage space to handle these
files.
It is possible that the audit rate could be higher than 5% for some
airports; the FAA used an estimated 5% as an average for all airports
and calculated costs accordingly. This 5% applies to all persons with
unescorted access who had been subject to an employment background
check, and not all persons with unescorted access on file. There would
be no potential liability responsibility should an incident occur since
airport operators are not fully responsible for the compliance of the
airport user.
The airport user or the airport would be filing these papers in
their file cabinets anyway, so there would be no additional cost.
d. Comments related to the FAA's NPRM economic analysis. A trade
organization claims that it is difficult to know for certain what
variables were included in the economic analysis, particularly as they
refer to the costs of the employment verification process for
screeners. This same organization states that the assumed annual growth
rate and salaries for screeners are far too low given the intent to add
new explosive detection technologies at airports.
An airport commenter is concerned that the FAA's costs did not
include the additional costs airports must incur to fulfill Sec. 107.31
costs.
FAA Response: FAA's economic analysis makes it very clear what
administrative costs are included, taking into account two hours of a
paperwork/clerk specialist and one third of an hour of airport or air
carrier supervisor designee. The FAA agrees that the advanced skills
required for explosives detection technology will mean higher salaries
and an increase in the overall demand for and career development growth
rate of these screeners vis-a-vis other screeners. This information is
included in the data used to calculate the costs of this rule.
All costs connected with Sec. 107.31 were captured in the analysis
of the final rule for Unescorted Access Privilege (60 FR 51854) that
went into effect on January 31, 1996. This rule seeks to cover
individuals not covered by Sec. 107.31, and so the costs for this rule
are separate.
Economic Summary
Proposed and final rule changes to Federal regulations must undergo
several economic analyses. First, Executive Order 12866 directs that
each Federal agency shall propose or adopt a regulation only upon a
reasoned determination that the benefits of the intended regulation
justify its costs. Second, the Regulatory Flexibility Act of 1980
requires agencies to analyze the economic effect of regulatory changes
on small entities. Third, the Office of Management and Budget directs
agencies to assess the effect of regulatory changes on international
trade. In conducting these analyses, the Federal Aviation
Administration (FAA) has determined that the final rule would generate
benefits that justify its costs and is not ``a significant regulatory
action'' as defined in the Executive Order or Department of
Transportation Regulatory Policies and Procedures. The rule will not
have a significant impact on a substantial number of small entities and
will not constitute a barrier to international trade. In addition, this
rule does not contain any Federal intergovernmental mandates, but does
contain a private sector mandate. However, because expenditures by the
private sector will not exceed $100 million annually, the requirements
of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.
Cost of Compliance
The FAA has performed an analysis of the expected costs and
benefits of this regulation. In this analysis, the FAA estimated costs
for a 10-year period, from 1999 through 2008. 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 1997 dollars.
The FAA estimates that in 1999, there will be 15,600 screeners and
screener supervisors affected by this rule, comprised of 1,400
checkpoint security supervisors (CSS), 100 shift supervisors, and
14,100 screeners. The analysis assumes loaded hourly wages (i.e., with
fringe benefits) of $6.25 for screeners, $7.31 for CSS's, and $11.00
for shift supervisors. Industry sources report, on average, annual
turnovers of 110% for all screeners, 85% 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 use these turnover rates
for the entire industry. In addition, the FAA 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. 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.
[[Page 51216]]
Currently, a fingerprint check takes, on average, 54 days to be
processed. During this time period, this particular employee, if hired,
will need to be supervised. This employee's productivity will be low
for he or she will not be able to exercise any independent judgment;
all screened baggage will also need to be checked by this employee's
supervisor, and this employee will 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. Accordingly, the FAA will
use a 15% productivity rate in this analysis.
The alternative will be to delay hiring 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 locations that
this person can then be hired based on another job opening.
The FAA examined the cost of both of these alternatives. The lower
cost alternative will be to delay hiring this person until the
fingerprint check results return; in such a situation, the only costs
will be the costs of fingerprinting the employee. The higher cost
alternative will be to hire this person, have this person supervised,
and pay them even though their productivity will be low. Screeners will
be supervised by another screener, at a total cost of about $1,925 per
hire for the 54 day period. CSS's will be supervised by another CSS, at
a total cost of about $2,250 per hire for the 54 day period.
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 this final rule, employers and/or employees
will pay the entire cost (with employees proscribed from handling the
fingerprint cards), while the FAA will no longer pay the $4 difference.
Hence these incremental changes cancel each other out.
Since January 31, 1996, all applicants for specific jobs requiring
unescorted access have been subject to a criminal background history
check; the FAA collected data on the results of the first eight months
of these applicants. Of the applications that were processed, 0.4% of
applicants needed to be fingerprinted. In addition, almost none had a
prior criminal conviction which disqualified them. In the absence of
other information, the FAA will use these percentages (0.4% and 0.0%,
respectively) in estimating the costs of this final rule. Due to both
the growth rate in screeners and the annual turnover rates, the FAA
estimates that the ten-year costs for the criminal history background
check portion of this final rule will range from $38,800 (net present
value, $33,300) to $1.16 million (net present value, $804,100), again,
the latter cost including the cost of supervision.
The FAA, in removing the USCS exemption in Sec. 107.31(m), has made
it clear that those individuals who were granted unescorted access
based on the Customs background check prior to the effective date of
this rule will be grandfathered. Hence, no employee who received
unescorted access based on a background check from USCS will have to
undergo a new check, and there will be no costs associated with the
removal of this exception.
This amendment will add a new requirement that will 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, airport users. They will need
to develop and carry out processes by which they will examine the
accuracy and completeness of the employment background investigations
being accomplished on all of all listed parties.
The actual percentage to be audited may vary by airport and air
carrier and will be included in each's security program. The FAA
assumes that, on average, 5 percent of all employment background
investigations will be checked. The average check will 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 will cost approximately $58.
Based on the number of employees at airports with unescorted access
privileges, specific employee growth rates, and annual attrition rates,
the FAA calculates ten year costs for the airports to be $3.96 million
(net present value, $2.72 million). Meanwhile, the air carriers will
need to run checks on the screeners and screener supervisors that are
hired during this time period. The ten-year costs for the air carriers
sum to $524,700 (net present value, $365,500).
The ten-year cost of this rule will range from $4.53 million (net
present value, $3.12 million) to $5.64 million (net present value,
$3.89 million).
Analysis of Benefits
The purpose of this final rule is to enhance aviation security. The
primary benefit of the rule will be increased protection to Americans
and others traveling on U.S. domestic air carrier flights from acts of
terrorism. The changes envisioned in this rule are an integral part of
the total program needed by the airports, air carriers, and the FAA to
prevent a criminal or terrorist incident in the future.
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 final rule play a major
role in preventing such occurrences. It is essential that potential
employees that may have criminal records or questionable backgrounds be
investigated, and, if certain conditions are met, denied the
opportunity to conduct security-related activities. Such individuals
could definitely be a threat to aviation security.
In 1996, both Congress and the White House Commission on Aviation
Safety and Security recommended further specific actions to increase
aviation security. The Commission stated that it believes that the
threat against civil aviation is changing and growing, and recommended
that the federal government commit greater resources to improving
aviation security. 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 growing threat in the Federal
Aviation Reauthorization Act of 1996 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 including this current rulemaking action.
The cost of a catastrophic terrorist act can be estimated in terms
of lives lost, property damage, decreased public utilization of air
transportation, etc. The most deadly and expensive example of the type
of event that aviation security is trying to prevent is the Pan Am 103
tragedy over Lockerbie, Scotland. Since the benefits of this rule will
apply primarily to domestic flights, which are flown primarily by
narrow-bodied airplanes, rather than international flights, which are
flown primarily by wide-bodied airplanes, the FAA examined the costs
associated with this catastrophe as they will apply to a domestic
tragedy. A conservative estimate of these costs is $832.4 million. This
high cost underscores the consequences of not taking prudent security-
related steps.
Some benefits can be quantified--prevention of fatalities and
injuries and
[[Page 51217]]
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 ten-year cost of this rule would range from $4.53 million (net
present value, $3.12 million) to $5.64 million (net present value,
$3.89 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 points in this 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 regulations.
Congress, which reflects the will of the American public, has
determined that this regulation is in the best interest of the nation.
Because this 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 rule cost-
beneficial.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 establishes ``as a principle
of regulatory issuance that agencies shall endeavor, consistent with
the objective of the rule and of applicable statutes, to fit regulatory
and informational requirements to the scale of the business,
organizations, and governmental jurisdictions subject to regulation.''
To achieve that principle, the Act requires agencies to solicit and
consider flexible regulatory proposals and to explain the rationale for
their actions. The Act covers a wide-range of small entities, including
small businesses, not-for-profit organizations and small governmental
jurisdictions.
Agencies must perform a review to determine whether a proposed or
final rule will have a significant economic impact on a substantial
number of small entities. If the determination is that it will, the
agency must prepare a regulatory flexibility analysis (RFA) as
described in the Act.
However, if an agency determines that a proposed or final rule is
not expected to have a significant economic impact on a substantial
number of small entities, section 605(b) of the 1980 act provides that
the head of the agency may so certify and an RFA is not required. The
certification must include a statement providing the factual basis for
this determination, and the reasoning should be clear.
Security Screening Companies
This rule will affect companies that perform security screening as
well as specific airports. There are currently 58 companies that
provide security screening services; 32 of these are small entities. To
estimate the annual cost impact for each screening company, the FAA
calculated what the maximum annual cost of the regulations will be per
screener over the time period examined by this analysis, $11.66, and
multiplied by the number of screeners that that company has. Based on
these calculations, the FAA concludes that the costs are ``de minimus''
on all but four small entities; the highest cost for these four small
entities is $5,000.
Airports
The airports covered by this rule are those that are regularly
served by scheduled passenger aircraft operations having airplanes with
a passenger seating configuration of greater than 60 seats, are subject
to screening programs defined in the current Sec. 108.5, and are
required to have an Airport Security Program (ASP) under the current
Sec. 107.3(b). There are 74 such airports that have over 2 million
people screened per year and 185 such airports that have less than 2
million people screened per year.
Part 107 affects airports classified under Standard Industrial
Classification (SIC) 4582. The SBA's small entity size standards
criterion define a small airport as one owned by a county, 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 are totaled to determine whether that airport
is small. In addition, all privately owned, public-use airports are
considered small.
The most recent population data for cities, counties, and states is
taken from the 1990 Census and this was used to determine the
population of the appropriate jurisdiction. Thirty-seven of the 259
airports that meet the above definition are owned by jurisdictions with
populations less than 50,000. Each of these has less than 2 million
person screenings per year. As discussed above, an average of 554
employees have unescorted access privileges at each of these airports
at the end of 1996. The average one year cost for any such airport is
$215.
Conclusion
The FAA conducted the required review of this amendment and
determined that it will not have a significant economic impact on a
substantial number of small entities. Accordingly, pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal Aviation
Administration certifies that this rule will not have a significant
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 final rule change will 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
this reason, a trade impact assessment is not be applicable for
domestic airports.
Unfunded Mandates Determination
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 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 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 ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Act is any
provision in a Federal agency regulation that will 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 Act, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory
[[Page 51218]]
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 final rule does not contain any Federal intergovernmental
mandates or private sector mandates.
Federalism Implications
These regulations do not have substantial direct effects on the
states, or on the relationship, or distribution of power and
responsibilities, between the Federal Government and the states. Thus,
in accordance with the federalism principles and policymaking criteria
of Executive Order 13083, this agency has determined that no federalism
implications exist necessitating a Federalism Consultation.
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
Under the requirements of the Paperwork Reduction Act of 1995, the
Office of Management and Budget has approved the information collection
burden for this rule and assigned it OMB Approval Number 2120-0628.
List of Subjects in 14 CFR Parts 107 and 108
Air carriers, Air transportation, Airlines, Airplane operator
security, Aviation safety, Reporting and recordkeeping requirements,
Security measures, Transportation, Weapons.
The Amendments
In consideration of the foregoing, the Federal Aviation
Administration amends parts 107 and 108 of Title 14, Code of Federal
Regulations (14 CFR parts 107 and 108) as follows:
PART 107--AIRPORT SECURITY
1. The authority citation for part 107 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105,
Sec. 306, Pub. L. 104-264, 110 Stat. 3213.
2. Section 107.31 is revised to read as follows:
Sec. 107.31 Employment history, verification and criminal history
records checks.
(a) Scope. On or after January 31, 1996, this section applies to
all airport operators; airport users; individuals currently having
unescorted access to a security identification display area (SIDA) that
is identified by Sec. 107.25; all individuals seeking authorization
for, or seeking the authority to authorize others to have, unescorted
access to the SIDA; and each airport user and air carrier making a
certification to an airport operator pursuant to paragraph (n) of this
section. An airport user, for the purposes of Sec. 107.31 only, is any
person making a certification under this section other than an air
carrier subject to Sec. 108.33.
(b) Employment history investigations required. Except as provided
in paragraph (m) of this section, each airport operator must ensure
that no individual is granted authorization for, or is granted
authority to authorize others to have, unescorted access to the SIDA
unless the following requirements are met:
(1) The individual has satisfactorily undergone Part 1 of an
employment history investigation. Part 1 consists of a review of the
previous 10 years of employment history and verification of the 5
employment years preceding the date the appropriate investigation is
initiated as provided in paragraph (c) of this section; and
(2) If required by paragraph (c)(5) of this section, the individual
has satisfied Part 2 of the employment history investigation. Part 2 is
the process to determine if the individual has a criminal record. To
satisfy Part 2 of the investigation the criminal record check must 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 any of the crimes listed below:
(i) Forgery of certificates, false marking of aircraft, and other
aircraft registration violation, 49 U.S.C. 46306;
(ii) Interference with air navigation, 49 U.S.C. 46308;
(iii) Improper transportation of a hazardous material, 49 U.S.C.
46312;
(iv) Aircraft piracy, 49 U.S.C. 46502;
(v) Interference with flightcrew members or flight attendants, 49
U.S.C. 46504;
(vi) Commission of certain crimes aboard aircraft in flight, 49
U.S.C. 46506;
(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.
46505;
(viii) Conveying false information and threats, 49 U.S.C. 46507;
(ix) Aircraft piracy outside the special aircraft jurisdiction of
the United States, 49 U.S.C. 46502(b);
(x) Lighting violations involving transporting controlled
substances, 49 U.S.C. 46315;
(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;
(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. Part 1 of the employment history
investigation must be competed on all persons listed in paragraph (a)
of this section. If required by paragraph (c)(5) of this section, Part
2 of the employment history investigation must also be completed on all
persons listed in paragraph (a) of this section.
(1) The individual must 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 airport operator or the airport user must include on the
application form a notification that the individual will be subject to
an employment history verification and possibly a criminal records
check.
(3) The airport operator or the airport user must verify the
identity of the individual through the presentation of two forms of
identification, one of which must bear the individual's photograph.
[[Page 51219]]
(4) The airport operator or the airport user must verify the
information on the most recent 5 years of employment history required
under paragraph (c)(1)(ii) of this section. Information must be
verified in writing, by documentation, by telephone, or in person.
(5) If one or more of the conditions (triggers) listed in
Sec. 107.31(c)(5)(i) through (iv) exist, the employment history
investigation must not be considered complete unless Part 2 is
accomplished. Only the airport operator may initiate Part 2 for airport
users under this section. Part 2 consists of a comparison of the
individual's fingerprints against the fingerprint files of known
criminals maintained by the Federal Bureau of Investigation (FBI). The
comparison of the individual's fingerprints must be processed through
the FAA. The airport operator may request a check of the individual's
fingerprint-based criminal record only if one or more of the following
conditions exist:
(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
airport user during the investigation indicating a possible conviction
for one of the crimes listed in paragraph (b)(2) of this section.
(d) Individual notification. Prior to commencing the criminal
records check, the airport operator must notify the affected individual
and identify the Airport Security Coordinator as a contact for follow-
up. An individual, who chooses not to submit fingerprints, after having
met a requirement for Part 2 of the employment investigation, may not
be granted unescorted access privilege.
(e) Fingerprint processing. If a fingerprint comparison is
necessary under paragraph (c)(5) of this section to complete the
employment history investigation the airport operator must collect and
process fingerprints in the following manner:
(1) One set of legible and classifiable fingerprints must be
recorded on fingerprint cards approved by the FBI, and distributed by
the FAA for this purpose.
(2) The fingerprints must be obtained from the individual under
direct observation by the airport operator or a law enforcement
officer. Individuals submitting their fingerprints may not take
possession of their fingerprint card after they have been
fingerprinted.
(3) The identity of the individual must be verified at the time
fingerprints are obtained. The individual must present two forms of
identification, one of which must bear the individual's photograph.
(4) The fingerprint card must be forwarded to the FAA at the
location specified by the Administrator.
(5) Fees for the processing of the criminal record checks are due
upon application. Airport operators must submit payment through
corporate check, cashier's check, or money order made payable to ``U.S.
FAA,'' at the designated rate for each fingerprint card. Combined
payment for multiple applications is acceptable. The designated rate
for processing the fingerprint cards is available from the local FAA
security office.
(f) Determinaiton of arrest status. In conducting the criminal
record checks required by this section, the airport operator must not
consider the employment history investigation complete unless it
investigates arrest information for the crimes listed in paragraph
(b)(2) of this section for which no disposition has been recorded and
makes a determination that the arrest did not result in a disqualifying
conviction.
(g) Availability and correction of FBI records and notification of
disqualification. (1) At the time Part 2 is initiated and the
fingerprints are collected, the airport operator must notify the
individual that a copy of the criminal record received from the FBI
will be made available to the individual if requested in writing. When
requested in writing, the airport operator must make available to the
individual a copy of any criminal record received from the FBI.
(2) Prior to making a final decision to deny authorization to an
individual described in paragraph (a) of this section, the airport
operator must advise the individual that the FBI criminal record
discloses information that would disqualify him/her from receiving
unescorted access and provide the individual with a copy of the FBI
record if it has been requested.
(3) The airport operator must notify an individual that a final
decision has been made to grant or deny authority for unescorted
access.
(h) Corrective action by the individual. The individual may contact
the local jurisdiction responsible for the information and the FBI to
complete or correct the information contained in his/her record before
any final decision is made, subject to the following conditions:
(1) Within 30 days after being advised that the criminal record
received from the FBI discloses disqualifying information, the
individual must notify the airport operator, in writing, of his/her
intent to correct any information believed to be inaccurate.
(i) 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.
(2) If not notification is received within 30 days, the airport
operator may make a final determination.
(i) Limits on dissemination of results. Criminal record information
provided by the FBI must be used solely for the purposes of this
section, and no person may disseminate the results of a criminal record
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. (1) Except when the airport operator has
received a certification under paragraph (n)(1) of this section, the
airport operator must physically maintain and control the Part 1
employment history investigation file until 180 days after the
termination of the individual's authority for unescorted access. The
Part 1, employment history investigation file, must consist of the
following:
(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) The airport operator must physically maintain, control and when
appropriate destroy Part 2, the criminal record, for each individual
for whom a fingerprint comparison has been completed. Part 2 must be
maintained for 180 days after the termination of the individual's
authority for unescorted access. Only direct airport operator
[[Page 51220]]
employees may carry out this criminal record file responsibility. The
Part 2 criminal record file must consist of the following:
(i) The criminal record received from the FBI as a result of an
individual's fingerprint comparison; or
(ii) Information that the check was completed and no record exists.
(3) The files required by this section must be maintained in a
manner that is acceptable to the Administrator and in a manner that
protects the confidentiality of the individual.
(l) Continuing responsibilities. (1) Any individual authorized to
have unescorted access privileges or who may authorize others to have
unescorted access, who is subsequently convicted of any of the crimes
listed in paragraph (b)(2) of this section must, within 24 hours,
report the conviction to the airport operator and surrender the SIDA
access medium to the issuer.
(2) If information becomes available to the airport operator or the
airport user indicating that an individual with unescorted access has a
possible conviction for one of the disqualifying crimes in paragraph
(b)(2) of this section, the airport operator must determine the status
of the conviction. If a disqualifying conviction is confirmed the
airport operator must 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, or to authorize others to have unescorted access to
the SIDA:
(1) An employee of the Federal government or a state or local
government (including a law enforcement officer) who, as a condition of
employment, has been subjected to an employment investigation which
includes a criminal record check.
(2) A crewmember of a foreign air carrier covered by an alternate
security arrangement in the foreign air carrier's approved security
program.
(3) An individual who has been continuously employed in a position
requiring unescorted access by another airport operator, airport user
or air carrier.
(4) Those persons who have received access to a U.S. Customs
secured area prior to November 23, 1998.
(n) Investigations by air carriers and airport users. An airport
operator is in compliance with its obligation under paragraph (b) of
this section, as applicable, when the airport operator accepts for each
individual seeking unescorted access one of the following:
(1) Certification from an air carrier subject to Sec. 108.33 of
this chapter indicating it has complied with Secs. 108.33 of this
chapter for the air carrier's employees and contractors seeking
unescorted access; or
(2) Certification from an airport user indicating it has complied
with and will continue to comply with the provisions listed in
paragraph (p) of this section. The certification must include the name
of each individual for whom the airport user has conducted an
employment history investigation.
(o) Airport operator responsibility. The airport operator must:
(1) Prior to the acceptance of a certification from the airport
user, the airport operator must conduct a preliminary review of the
file for each individual listed on the certification to determine that
Part 1 has been completed.
(2) Designate the airport security coordinator (ASC), in the
security program, to be responsible for reviewing the results of the
airport employees' and airport users' employment history investigations
and for destroying the criminal record files when their maintenance is
no longer required by paragraph (k)(2) of this section;
(3) Designate the ASC, in the security program, to serve as the
contact to receive notification from individuals applying for
unescorted access of their intent to seek correction of their FBI
criminal record; and
(4) Audit the employment history investigations performed by the
airport operator in accordance with this section and those
investigations conducted by the airport users made by certification
under paragraph (n)(2). The audit program must be set forth in the
airport security program.
(p) Airport user responsibility.
(1) The airport user is responsible for reporting to the airport
operator information, as it becomes available, which indicates an
individual with unescorted access may have a conviction for one of the
disqualifying crimes in paragraph (b)(2) of this section; and
(2) If the airport user offers certification to the airport
operator under paragraph (n)(2) of this section, the airport user must
for each individual for whom a certification is made:
(i) Conduct the employment history investigation, Part 1, in
compliance with paragraph (c) of this section. The airport user must
report to the airport operator if one of the conditions in paragraph
(C)(5) of this section exist;
(ii) Maintain and control Part 1 of the employment history
investigation file in compliance with paragraph (k) of this section,
unless the airport operator decides to maintain and control Part 1 of
the employment history investigation file;
(iii) Provide the airport operator and the FAA with access to each
completed Part 1 employee history investigative file of those
individuals listed on the certification; and
(iv) Provide either the name or title of the individual acting as
custodian of the files, and the address of the location and the phone
number at the location where the investigative files are maintained.
PART 108--AIRPLANE OPERATOR SECURITY
3. The authority citation for part 108 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
4. Section 108.33 is revised to read as follows:
Sec. 108.33 Employment history, verification and criminal history
records checks.
(a) Scope. The following persons are within the scope of this
section:
(1) Each employee or contractor employee covered under a
certification made to an airport operator, pursuant to Sec. 107.31(n)
of this chapter, made on or after November 23, 1998.
(2) Each individual issued air carrier identification media that
one or more airports accepts as airport approved media for unescorted
access within a security identification display area (SIDA) as
described in Sec. 107.25 of this chapter.
(3) Each individual assigned, after November 23, 1998, to perform
the following functions:
(i) Screen 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) Serve as an immediate supervisor (checkpoint security
supervisor (CSS)), or the next supervisory level (shift or site
supervisor), to those individuals described in paragraph (a)(3)(i) of
this section.
(b) Employment history investigations required. Each air carrier
must ensure that, for each individual described in paragraph (a) of
this section, the following requirements are met:
(1) The individual has satisfactorily undergone Part 1 of an
employment history investigation. Part 1 consists of a review of the
previous 10 years of employment history and verifications of the 5
employment years preceding the date the employment history
investigation is initiated as provided in paragraph (c) of this
section; and
[[Page 51221]]
(2) If required by paragraph (c)(5) of this section, the individual
has satisfied Part 2 of the employment history investigation. Part 2 is
the process to determine if the individual has a criminal record. To
satisfy Part 2 of the investigation the criminal records check must 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 any of the crimes listed below:
(i) Forgery of certificates, false marking of aircraft, and other
aircraft registration violation, 49 U.S.C. 46306;
(ii) Interference with air navigation, 49 U.S.C. 46308;
(iii) Improper transportation of a hazardous material, 49 U.S.C.
46312;
(iv) Aircraft piracy, 49 U.S.C. 46502;
(v) Interference with flightcrew members or flight attendants, 49
U.S.C. 46504;
(vi) Commission of certain crimes aboard aircraft in flight, 49
U.S.C. 46506;
(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.
46505;
(viii) Conveying false information and threats, 49 U.S.C. 46507;
(ix) Aircraft piracy outside the special aircraft jurisdiction of
the United States, 49 U.S.C. 46502(b);
(x) Lighting violations involving transporting controlled
substances, 49 U.S.C. 46315;
(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;
(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. Part 1 of the employment history
investigations must be completed on all persons described in paragraph
(a) of this section. If required by paragraph (c)(5) of this section,
Part 2 of the employment history investigation must also be completed
on all persons listed in paragraph (a) of this section.
(1) The individual must provide the following information on an
application:
(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 must include on the application form a
notification that the individual will be subject to an employment
history verification and possibly a criminal records check.
(3) The air carrier must 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 must verify the information on the most recent
5 years of employment history required under paragraph (c)(1)(ii) of
this section. Information must be verified in writing, by
documentation, by telephone, or in person.
(5) If one or more of the conditions (triggers) listed in
Sec. 108.33(c)(5) (i) through (iv) exist, the employment history
investigation must not be considered complete unless Part 2 is
accomplished. Only the air carrier may initiate Part 2. Part 2 consists
of a comparison of the individual's fingerprints against the
fingerprint files of known criminals maintained by the Federal Bureau
of Investigation (FBI). The comparison of the individual's fingerprints
must be processed through the FAA. The air carrier may request a check
of the individual's fingerprint-based criminal record only if one or
more of the following conditions exist:
(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 air carrier during the
investigation indicating a possible conviction for one of the crimes
listed in paragraph (b)(2) of this section.
(d) Individual notification. Prior to commencing the criminal
records check, the air carrier must notify the affected individuals and
identify a point of contact for follow-up. An individual who chooses
not to submit fingerprints may not be granted unescorted access
privilege and may not be allowed to hold screener or screener
supervisory positions.
(e) Fingerprint processing. If a fingerprint comparison is
necessary under paragraph (c)(5) of this section to complete the
employment history investigation the air carrier must collect and
process fingerprints in the following manner:
(1) One set of legible and classifiable fingerprints must be
recorded on fingerprint cards approved by the FBI and distributed by
the FAA for this purpose.
(2) The fingerprints must be obtained from the individual under
direct observation by the air carrier or a law enforcement officer.
Individuals submitting their fingerprints must not take possession of
their fingerprint card after they have been fingerprinted.
(3) The identify of the individual must be verified at the time
fingerprints are obtained. The individual must present two forms of
identification, one of which must bear the individual's photograph.
(4) The fingerprint card must be forwarded to FAA at the location
specified by the Administrator.
(5) Fees for the processing of the criminal records checks are due
upon application. Air carriers must submit payment through corporate
check, cashier's check, or money order made payable to ``U.S. FAA,'' at
the designated rate for each fingerprint card. Combined payment for
multiple applications is acceptable. The designated rate for processing
the fingerprint cards is available from the local FAA security office.
(f) Determination of arrest status. In conducting the criminal
record checks required by this section, the air carrier must not
consider the employment history investigation complete unless it
investigates arrest information for the crimes listed in paragraph
(b)(2) of this section for which no disposition has been recorded and
makes a determination that the arrest did not result in a disqualifying
conviction.
(g) Availability and correction of FBI records and notification of
disqualification. (1) At the time Part 2 is initiated and the
fingerprints are collected, the air carrier must notify the individual
that a copy of the criminal record received from the FBI will be made
available to the individual if requested in writing. When requested in
writing, the air carrier must make
[[Page 51222]]
available to the individual a copy of any criminal record received from
the FBI.
(2) Prior to making a final decision to deny authorization to an
individual described in paragraph (a) of this section, the air carrier
must advise the individual that the FBI criminal record discloses
information that would disqualify him/her from positions covered under
this rule and provide him/her with a copy of their FBI record if
requested.
(3) The air carrier must notify an individual that a final decision
has been made to forward or not forward a letter of certification for
unescorted access to the airport operator, or to grant or deny the
individual authority to perform screening functions listed under
paragraph (a)(3) of this section.
(h) Corrective action by the individual. The individual may
contact the local jurisdiction responsible for the information and the
FBI to complete or correct the information contained in his/her record
before the air carrier makes any decision to withhold his/her name from
a certification, or not grant authorization to perform screening
functions subject to the following conditions:
(1) Within 30 days after being advised that the criminal record
received from the FBI discloses disqualifying information, the
individual must notify the air carrier, in writing, of his/her 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 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 record information
provided by the FBI must be used solely for the purposes of this
section, and no person may disseminate the results of a criminal record
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 details 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)(3) and (d)(4) of this section, may not exercise any independent
judgments regarding those functions.
(k) Recordkeeping. (1) The air carrier must physically maintain and
control Part 1 employment history investigation file until 180 days
after the termination of the individual's authority for unescorted
access or termination from positions covered under paragraph (a)(3) of
this section. Part 1 of the employment history investigation, completed
on screening personnel must be maintained at the airport where they
perform screening functions. Part 1 of the employment history
investigation file must consist of the following:
(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) The air carrier must physically maintain, control and when
appropriate destroy Part 2, the criminal record file, for each
individual for whom a fingerprint comparison has been made. Part 2 must
be maintained for 180 days after the termination of the individual's
authority for unescorted access or after the individual ceases to
perform screening functions. Only direct air carrier employees may
carry out Part 2 responsibilities. Part 2 must consist of the
following:
(i) The results of the record check; or
(ii) Certification from the air carrier that the check was
completed and did not uncover a disqualifying conviction.
(3) The files required by this paragraph must be maintained in a
manner that is acceptable to the Administrator and in a manner that
protects the confidentiality of the individual.
(l) Continuing responsibilities. (1) Any individual authorized to
have unescorted access privilege to the SIDA or who performs functions
covered under paragraph (a)(3) of this section, who is subsequently
convicted of any of the crimes listed in paragraph (b)(2) of this
section must, within 24 hours, report the conviction to the air carrier
and surrender the SIDA access medium or any employment related
identification medium to the issuer.
(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 must determine the status of the conviction and, if the
conviction is confirmed:
(i) Immediately revoke access authorization for unescorted access
to the SIDA; or
(ii) Immediately remove the individual from screening functions
covered under paragraph (a)(3) of this section.
(m) Air carrier responsibility. The air carrier must:
(1) Designate an individual(s), in the security program, to be
responsible for maintaining and controlling the employment history
investigation for those whom the air carrier has made a certification
to an airport operator under Sec. 107.31(n)(1) of this chapter and for
destroying the criminal record files when their maintenance is no
longer required by paragraph (k)(2) of this section.
(2) Designate individual(s), in the security program, to maintain
and control Part 1 of the employment history investigations of
screeners whose files must be maintained at the location or station
where the screener is performing his or her duties.
(3) Designate individual(s), in the security program, to serve as
the contact to receive notification from an individual applying for
either unescorted access or those seeking to perform screening
functions of his or her intent to seek correction of his or her
criminal record with the FBI.
(4) Designate an individual(s), in the security program, to
maintain and control Part 2 of the employment history investigation
file for all employees, contractors, or others who undergo a
fingerprint comparison at the request of the air carrier.
(5) Audit the employment history investigations performed in
accordance with this section. The audit process must be set forth in
the air carrier approved security program.
Issued in Washington, DC on September 16, 1998.
Jane F. Garvey,
Administrator.
[FR Doc. 98-25210 Filed 9-23-98; 8:45 am]
BILLING CODE 4910-13-M
