[Federal Register Volume 60, Number 191 (Tuesday, October 3, 1995)]
[Rules and Regulations]
[Pages 51854-51871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24546]




[[Page 51853]]

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Part V





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Parts 107 and 108



Unescorted Access Privilege; Final Rule

  Federal Register / Vol. 60, No. 191 / Tuesday, October 3, 1995 / 
Rules and Regulations  

[[Page 51854]]


DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 107 and 108

[Docket No. 26763; Amendment Nos. 107-7, 108-12]
RIN 2120-AE14


Unescorted Access Privilege

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The FAA is issuing final regulations requiring airport 
operators and air carriers to conduct an employment investigation and 
disqualify individuals convicted of certain enumerated crimes from 
having, or being able to authorize others to have, unescorted access 
privileges to a security identification display area (SIDA) of a U.S. 
airport. This rule implements the employment investigation provisions 
of Section 105 of the Aviation Security Improvement Act of 1990. The 
rule will enhance the effectiveness of the U.S. civil aviation security 
system by ensuring that individuals applying for unescorted access 
privileges do not constitute an unreasonable risk to the security of 
the aviation system.

EFFECTIVE DATE: January 31, 1996.

FOR FURTHER INFORMATION CONTACT:
Robert Cammorroto (202-267-7723) or Linda Valencia (202-267-8222), 
Office of Civil Aviation Security Policy and Planning, Policy and 
Standards Division, (ACP-100), Federal Aviation Administration, 800 
Independence Avenue, SW., Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

Availability of Document

    Any person may obtain a copy of this document by submitting a 
request to the Federal Aviation Administration, Office of Public 
Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence 
Avenue, SW., Washington, DC 20591, or by calling (202) 267-3484. 
Communications must identify the amendment number or docket number. 
Persons interested in being placed on a mailing list for future rules 
should also request a copy of Advisory Circular No. 11-2A, which 
describes the application procedures.

Background

    Throughout the last decade, the FAA has recognized the need to 
investigate the backgrounds of individuals authorized to have 
unescorted access to security-restricted areas at U.S. airports. On 
November 26, 1985, the FAA amended airport and air carrier security 
programs to require 5-year background checks for individuals applying 
for unescorted access authority to the security controlled areas of an 
airport. The check requires the verification of such individual's 
employment history and references for the previous 5 years to the 
extent allowable by law.
    The December 21, 1988, destruction of Pan American World Airways 
Flight 103 by a terrorist bomb while in flight over Lockerbie, 
Scotland, was the worst disaster of its kind in U.S. civil aviation 
history. In response to this tragedy, on August 4, 1989, President Bush 
established the President's Commission on Aviation Security and 
Terrorism (Commission) (E.O. 12686) to assess the overall effectiveness 
of the U.S. civil aviation security system.
    The Commission's May 15, 1990, report presented a series of 
recommendations intended to improve the U.S. civil aviation security 
system. The Commission recommended that Congress enact legislation 
requiring a criminal history records check for airport employees. The 
Commission further recommended that the legislation identify certain 
crimes that indicate a potential security risk, and enable airport 
operators to deny employment in positions requiring access to security 
sensitive areas on that basis. The Commission's recommendations formed 
the basis of the Aviation Security Improvement Act of 1990, Pub. L. 
101-604 (the Act).
    Section 105(a) of the Aviation Security Improvement Act (the Act) 
now codified as 49 U.S.C. 44936, added a new provision to the statute. 
This provision directs the FAA Administrator to promulgate regulations 
that subject individuals with unescorted access to U.S. or foreign air 
carrier aircraft, or to secured areas of U.S. airports serving air 
carriers, to such employment investigations, including a criminal 
history records check, as the Administrator determines necessary to 
ensure air transportation security.
    In March 1991, the aviation industry provided suggestions for 
implementing Section 105 of the Act through the Aviation Security 
Advisory Committee (ASAC). These recommendations assisted the FAA in 
developing its initial notice of proposed rulemaking (NPRM) published 
in the Federal Register on February 13, 1992 (Notice No. 92-3; 57 FR 
5352). In that notice the FAA proposed to require a criminal history 
records check, using the Federal Bureau of Investigation's (FBI) 
fingerprint-based national criminal history record filing system, for 
all individuals (including current employees) with SIDA unescorted 
access privileges. In that proposal, the FAA used the broad authority 
delegated to the FAA Administrator in the Act to require an employment 
investigation, including a criminal history records check.
    On March 12, 1992, responding to requests from airport operators 
and air carriers, the FAA extended the comment period for that proposal 
from March 16 until May 15, 1992 (Notice No. 92-3A; 57 FR 8834), and 
announced a series of public meetings. The FAA published the notice 
outlining the details of the public meetings on April 9, 1992 (Notice 
No. 92-3B; 57 FR 12396). Public meetings were held in Los Angeles, 
California on April 28; Ft. Worth, Texas on April 30; and Washington, 
D.C. on May 12, 1992. The FAA received over 270 written comments to the 
docket and 66 commenters made oral presentations at the public 
meetings.
    The overwhelming majority of commenters opposed FAA's proposal to 
require a criminal history records check for all individuals having 
unescorted access to the SIDA, and the proposal to require escorts for 
anyone inside the SIDA who did not have such a records check. 
Specifically, commenters argued that individuals with existing 
unescorted access privileges should be excluded from the criminal 
history records check requirement, and that the proposed escorting 
requirements were neither practical nor cost-effective. Some commenters 
questioned whether any benefit would result from requiring a criminal 
history check. Because of these concerns, commenters strongly 
recommended that the FAA exercise more flexibility in implementing the 
employment investigation provision of the Act.

Discussion of the SNPRM

    In response to comments received during the public meetings and the 
FAA's re-evaluation of the NPRM, the FAA issued a supplemental notice 
of proposed rulemaking (SNPRM) (Notice No. 92-3C; 57 FR 43294) on 
September 18, 1992. The SNPRM focused more broadly on the employment 
investigation process for individuals applying for unescorted access 
privilege. The SNPRM proposed an expanded employment application form, 
an enhanced 5-year employment history verification and, only where 
appropriate, a criminal history records check. Under this approach, a 
criminal history records check would be required only when the 
employment application process, including the history verification, 
``triggers'' a need for one. 

[[Page 51855]]
The proposed fingerprint-based criminal history records check process 
was similar to that proposed in the NPRM.

Discussion of SNPRM Comments

    The FAA received 34 comments in response to the SNPRM. Commenters 
included Congressman James L. Oberstar, 12 airport operators, 3 air 
carriers, 2 individuals, 3 small businesses, 1 state transportation 
department, the Federal Bureau of Investigation, the U.S. Customs 
Service and the following aviation organizations: Air Transport 
Association (ATA), Air Transport Association of Canada (ATAC), Aircraft 
Owners and Pilots Association (AOPA), Airline Pilots Association 
(ALPA), Airport Law Enforcement Agencies Network (ALEAN), Airports 
Association Council International (AACI), American Association of 
Airport Executives (AAAE), Association of Flight Attendants (AFA), 
Families of Pan Am 103/Lockerbie, National Air Transportation 
Association (NATA), and Regional Airline Association (RAA).
    Fifteen commenters support the employment investigation proposed in 
the SNPRM. Several of these commenters commend the FAA for its response 
and attention in addressing many of their major concerns in the initial 
notice.
    Seven commenters oppose the proposal, arguing against the need for 
the employment investigation because no documented terrorist act has 
ever been committed by someone with both unescorted access privileges 
and a record of conviction for one of the disqualifying crimes listed 
in the Act. One commenter questions the link between past convictions 
for disqualifying crimes and future terrorist actions. Two commenters, 
a member of Congress and the Families of Pan Am 103/Lockerbie, want a 
more extensive employment investigation than that proposed in the 
SNPRM. They suggest extending the employment verification portion to 10 
years and applying the employment investigation to individuals with 
existing unescorted access privilege.
    Three commenters also discuss the degree of discretion provided the 
Administrator in implementing the employment investigation requirement 
of the Act. One commenter states that the Act does not require this 
regulation and the FAA should not issue a final rule. Another states 
that the Act requires only an employment investigation with a criminal 
history check as the Administrator determines necessary. According to 
this commenter, issuance of a rule is completely discretionary. A third 
commenter contends that the statute mandates an employment 
investigation, not a criminal history records check.
    FAA Response: This rule enhances existing FAA security requirements 
and supports the objectives of the Act through a cost-effective and 
practical regulatory program. The FAA's security requirements focus on 
protecting persons and property in air transportation against acts of 
criminal violence, air piracy, and terrorism. These acts are neither 
simple nor uniform, and are certainly not limited to sophisticated acts 
of international terrorists with political motives or acts of deranged 
individuals. Also of concern are individuals deliberately committing, 
or deliberately or unknowingly assisting in the commission of criminal 
acts against aviation for financial gain or reprisal. For example, 
individuals with a history of felony narcotics distribution may be more 
susceptible to exploitation by those wishing to target a passenger 
aircraft. In this scenario, the employee would wittingly assist in 
placing a package of purported narcotics on the aircraft, only to find 
later that the packet actually contained an explosives device. A trust 
is placed in individuals authorized to have unescorted access, and it 
is reasonable to establish measures to reduce the likelihood that they 
will present a security risk to civil aviation.
    The U.S. aviation industry has not experienced incidents in which 
there was a direct relation between the disqualifying offenses and a 
serious security incident, such as a terrorist bombing or hijacking. 
However, the Act indicates Congress' concern that an individual's 
criminal history could show a disposition to engage in such conduct in 
the future, which could result in a serious security incident. 
Moreover, it is a reasonable and feasible precaution to prohibit 
unescorted access to individuals with a criminal record for certain 
types of crimes. This rule uses practices similar to other industry 
standards (e.g., bankers, stockbrokers and employees at nuclear 
facilities).
    The Act requires the FAA to issue regulations subjecting 
individuals with unescorted access to U.S. or foreign air carrier 
aircraft, or to SIDAs of U.S. airports, to such employment 
investigations, including a criminal history records check, as the 
Administrator determines necessary to ensure air transportation 
security. While the Act gives the Administrator flexibility in 
implementing the employment investigation provision, the Congress 
clearly contemplated that granting unescorted access privileges would 
be tied to some type of employment investigation.
    In response to the public hearings and written comments, the FAA 
modified the initial proposal and developed the SNPRM to enhance 
aviation security in a more cost-effective manner. The Conference 
Report on the Department of Transportation Fiscal Year 1993 
Appropriations legislation addressed the FAA's SNPRM stating:

    The conferees have agreed to delete the language proposed by the 
House that would have prohibited the Federal Aviation Administration 
from implementing a rule to require criminal background checks of 
airline and airport employees. The conferees' action is based on the 
Federal Aviation Administration's Supplemental Notice of Proposed 
Rulemaking published in the September 18, 1992, Federal Register in 
which the Federal Aviation Administration revised an earlier 
proposed rulemaking. The conferees recognize that the Federal 
Aviation Administration has used its discretionary authority to 
address the many concerns raised by the industry groups about the 
operational, financial and constitutional issues associated with its 
earlier proposal, and have concurred that the Federal Aviation 
Administration should not be prohibited from moving forward with 
this approach.

    This action clarified Congress' view that the SNPRM conforms with 
the legislative intent of the Act.

Discussion of the Final Rule

    The FAA developed this final rule based on the legislative mandate 
and the comments received during the rulemaking process. This rule 
amends 14 CFR parts 107 and 108; and parts 107 and 108 of the Federal 
Aviation Regulations (FAR). The rule expands the pre-existing 
requirements for an investigation into the background of individuals 
applying for unescorted access privileges to the SIDA of U.S. airports 
by providing specific guidelines for requirements.
    The final rule augments and clarifies the process required to 
satisfactorily determine the eligibility of individuals for unescorted 
access privileges. This rule requires the employment investigation to 
include: provision of a 10-year employment history by those applying 
for access; verification of the most recent 5 years of that history by 
the employer; and the completion of a criminal history records check 
when specific conditions are identified as a result of the information 
obtained through the investigation process.
    Similar in concept to the SNPRM, this final rule strengthens the 
existing employment investigation requirement by providing specific 
guidance on the type of information that must be 

[[Page 51856]]
obtained and evaluated, identifying specific ``triggers'' that indicate 
a need to conduct a criminal history records check, and establishing 
recordkeeping requirements. This final rule differs from the SNPRM in 
that it requires individuals applying for unescorted access privileges 
to provide their employment history for a period of 10 years prior to 
the date of application rather than 5 years. While the employer will 
have to review the entire application, consistent with the SNPRM, only 
the most recent 5 years of this history need be verified as part of the 
employment investigation review. Hence, while an applicant will have to 
provide additional employment history information, this will not 
materially increase the burden on airport operators, air carriers or 
other non-air-carrier airport tenants involved in granting unescorted 
access privileges. The FAA believes that this approach increases the 
effectiveness of the rule in identifying individuals with unexplained 
gaps in employment who may have been convicted of the disqualifying 
crimes during the past 10 years and will afford employers additional 
information on which to base access determinations.
    This final rule also modifies a key term used throughout the rule 
to further clarify its intent. Since it was used in the Act, the term 
``employment investigation'' was used extensively in the NPRM and the 
SNPRM. While both notices specified that the ``employment 
investigation'' is really related to access authority and not 
necessarily to employment decisions, the final rule uses the term 
``access investigation.'' The FAA believes that this term better 
describes the intent of the rule.
    The FAA Act of 1958 was recodified and appeared at 49 U.S.C. 
Subtitle VII, then under Public Law 103-272, (effective July 5, 1994) 
recoding occurred under 49 U.S.C. Code ``Transportation''. This Final 
Rule lists both the new statutory numbers for crimes committed and the 
former citations, in part because FBI records are likely to only have 
the latter citations.
    Another modification to the SNPRM is that the FAA will act as the 
clearinghouse for criminal history records checks. The procedures for 
processing fingerprint cards and associated fees are discussed later in 
this preamble under Sec. 107.31(i), `Fingerprint Processing.''

Further Action Considered

    Although this final rule makes an important improvement to the 
civil aviation security system, and is fully consistent with the 
rulemaking record, the FAA is currently evaluating whether further 
changes may be warranted. Subsequent to the close of the comment period 
for the SNPRM, this country has experienced two major acts of domestic 
terrorism. The World Trade Center bombing and the recent bombing of a 
Federal office building in Oklahoma City are evidence of the threat of 
terrorism within the United States. While neither incident involved an 
aviation target or appears to have involved individuals who had a 
disqualifying criminal record that would have been disclosed by an FBI 
fingerprint check, the incidents to raise questions about whether a 
broader rule should be considered in light of the general level of 
threat. It also raises questions about whether the statutory authority 
should be expanded to include other persons with security 
responsibilities, such as checkpoint screeners, who do not necessarily 
have unescorted access to air carrier aircraft or to the secured area 
of an airport. However, the FAA has concluded that it is essential and 
appropriate to move forward with this final rule on the existing record 
and not further delay action until the FAA's evaluation and possible 
further rulemaking are completed.
    The FAA intends to actively consult with airport operators and air 
carriers as part of this evaluation. The effect of this rule and its 
actual implementation by airports and air carriers will be followed 
closely from the outset. In addition, input will be sought from the 
Aviation Security Advisory Committee. The FAA will determine what 
further actions may be necessary based on the evaluation. The FAA also 
will review intelligence information in relation to the possible impact 
of a more extensive criminal history check requirement.

Section-by-Section Analysis

Section 107.1  Applicability and Definitions

Escort
    In the SNPRM, the FAA defined the term ``escort'' in 
Sec. 107.1(b)(3). One commenter, NATA, states that the proposed 
definition of escort implies that this function and any associated 
responses must be performed by the same individual. NATA suggests that 
an individual other than the one performing the escort be allowed to 
perform follow-up actions, and that escorting by electronic means be 
allowed.
    FAA Response: This rule retains the definition of ``escort'' that 
was included in the SNPRM, with minor modifications. Only an individual 
authorized by the airport operator to have access to areas controlled 
for security purposes may perform escorting. Specific action must be 
taken, in accordance with local airport procedures, if the individual 
under escort engages in activities other than those for which the 
escorted access is granted. The definition is modified by adding a 
sentence that explains that necessary responsive actions can be taken 
by the escort or other authorized individuals.
    The definition of escort adopted in this rule includes a 
performance standard. The definition provides the latitude to use 
various methods and procedures for the escort as long as they meet the 
established standard. For example, an airport could choose to establish 
escorting procedures for its general aviation areas that use electronic 
means and prescribe specific follow-up actions.

Section 107.31  Access Investigation

107.31(a)--Applicability

Area Covered
    Six commenters to the SNPRM discuss the applicability of the 
regulation to the SIDA. RAA, ATA, and AOPA contend that at some 
airports broad SIDA definitions include the entire air operations areas 
(AOA). The commenters believe the FAA should mandate a consistently 
defined, limited SIDA.
    An airport operator requests a broader applicability of the rule 
stating that two different levels of employment verification for SIDA 
and non-SIDA areas controlled for security purposes will be confusing. 
This operator recommends the rule apply uniformly to all areas that 
require identification badges. AACI and AAAE contend that one standard 
should apply to all, and they are particularly concerned that 
individuals performing air carrier screening are not included in the 
employment investigation rulemaking.
    FAA Response: This rule applies only to airports that require 
continuous display of airport-approved identification, i.e., the SIDA 
as defined in Sec. 107.25. The SIDA typically includes the secured area 
of an airport (Sec. 107.14 secured area) and some or all of the air 
operations areas (Sec. 107.13).
    FAA guidance has defined the areas and types of operations for 
inclusion within the SIDA. Any expansion of an airport SIDA requires 
FAA approval. In such instances, application of the policy guidance 
assures uniformity to the extent practical. Given the varied 
operational areas at airports, it is not 

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practical for the FAA to further define SIDA in the regulation.
    The FAA has clarified that this rule does not apply to smaller 
airports that do not have a continuous display requirement by removing 
the reference to these airports contained in Sec. 107.31(a)(2) of the 
SNPRM. However, if an airport has an area controlled for security 
reasons that is not a SIDA, the existing 5-year employment history 
verification continues to apply to individuals requesting unescorted 
access authority.
    The access investigation requirement of this rule applies to 
individuals seeking unescorted access privileges in the SIDA as well as 
those in a position to authorize others to have such access and 
supersedes the 5-year employment history verification in the airport 
security program for the covered individuals. The issuance or denial of 
an identification credential for continuous display in the SIDA serves 
as the vehicle for implementation of this requirement from a practical 
and enforcement standpoint.
    For individuals applying for positions that do not require SIDA 
unescorted access privileges (and thus are not covered by this rule), 
the existing security program language requiring the 5-year employment 
history verification will continue to apply. This includes security 
screening personnel and any other individuals with unescorted access 
only to security-controlled areas outside of a SIDA. While having 
somewhat different requirements may result in some extra administrative 
effort, the commenters did not provide any specific information showing 
that this will significantly increase the burden on airports. Except 
for the authority to access an applicant's criminal history record, an 
employer may use the application process specified in this rule in all 
circumstances.
Definition of Employer
    One commenter points out that the SNPRM implies that all persons 
for whom an airport operator may authorize or deny unescorted access 
privileges are employees of the airport subject to being hired or fired 
by the airport operator. This commenter explains that many individuals 
applying for unescorted access privileges are not airport operator 
employees.
    Two commenters address the consequences of the employment 
investigation proposed in the SNPRM on the employment process. One 
commenter believes the rule would affect the issuance of unescorted 
access authority rather than employment. The other commenter states 
that an employer would probably not hire a person who, based on 
preliminary employment investigation results, cannot be authorized for 
unescorted access privileges without going through a FBI criminal 
record history check. This commenter assumes the termination of the 
employment inquiry if it appears that a criminal records check is 
needed.
    FAA Response: The FAA agrees that the intent of the investigation 
is to determine an individual's eligibility for unescorted access 
authority. The Act, and the final rule, do not specifically prohibit 
the employment of disqualified individuals; rather, they prohibit 
individuals convicted of certain enumerated crimes in the past 10 years 
from being employed in a position having unescorted access to secured 
areas of a U.S. airport or to U.S. and foreign air carrier aircraft. As 
previously noted, the final rule uses the term ``access investigation'' 
rather than ``employment investigation,'' which was used in the NPRM 
and SNPRM. This change was made to clarify the intent of the rule. The 
FAA recognizes that individuals affected by the rule include current 
employees not previously granted unescorted access authority and 
prospective employees of an airport operator, air carrier, tenants 
other than air carriers, and contractors whose positions require 
unescorted access. This rule does not attempt to establish guidance, 
beyond ineligibility for unescorted access privileges, for the 
disposition of an individual whose access investigation reveals a 
conviction for a disqualifying crime.
Individuals With Current Access Authority
    Sixteen commenters address exempting individuals with existing 
unescorted access authority from the proposed employment investigation. 
Fifteen of these commenters (including air carriers, airport operators, 
unions, and non-air-carrier airport tenants) fully support the language 
in the SNPRM that would exempt from the required employment 
investigation all individuals who have current unescorted access 
authority on the effective date of the final rule. This support follows 
the recommendations made by the ASAC and numerous comments received in 
response to the initial notice and the SNPRM.
    One commenter (Congressman Oberstar) opposes the exclusion for 
individuals with existing access authority. Congressman Oberstar 
contends that the Commission's report recommendation and the Act's 
employment investigation provision are intended to cover individuals 
with existing authority and individuals applying for unescorted access 
privilege. He argues that the existing 5-year employment history 
verification is not subject to FAA approval, and the FAA has not 
provided guidance on what constitutes an acceptable check. Therefore, 
Congressman Oberstar states that the final rule must ``require that 
current employment investigation programs conform with those mandated 
in the final rule'' and that ``employers with non-conforming programs 
must be required to conduct 5-year employment checks of current 
employees to assure that they have undergone the same scrutiny as 
applicants.''
    One commenter is uncertain whether individuals exempted under the 
proposal with a previous conviction for a disqualifying crime would 
lose their privileges for unescorted access.
    FAA Response: While the Act gives the FAA authority to require 
employment investigations for individuals currently authorized for 
unescorted access privileges, the Act confers discretion on the FAA 
Administrator on methods for imposing such a requirement. Individuals 
authorized to have unescorted access privileges since November 26, 
1985, have been subjected to a 5-year employment history verification 
required by the FAA in the security programs of airport operators and 
air carriers. Since granting these individuals unescorted access 
privileges, airport operators and air carriers have had the opportunity 
to observe the individual's conduct.
    The benefits, if any, of subjecting current employees with 
unescorted access authority to the proposed access investigation would 
not justify the disruption and cost that such a requirement would place 
on the air carriers and airport operators. The estimated cost for 
verifying employment histories of all existing employees would be an 
additional $5.4 million. Further, because of typically high turnover 
rates, much of the employee population with unescorted access will have 
been subjected to the expanded background check within a relatively 
short period. Therefore, the FAA concludes that air transportation 
security does not require the retroactive application of this rule to 
individuals with current unescorted access authority.
    This rule does not require individuals currently authorized to have 
unescorted access to disclose a past conviction for a disqualifying 
crime. However, if a conviction occurs after the effective date 

[[Page 51858]]
of this rule, an individual with unescorted access authority will be 
subject to self-disclosure and disqualification from unescorted access 
privileges (see the Individual Accountability requirements of 
Sec. 107.31(l) and Sec. 108.33(h)).
120-Day Effective Date
    Ten commenters address the timeframe between the final rule 
issuance date and the effective date the industry must begin to comply 
with the employee investigation requirements proposed in the SNPRM. Two 
commenters agree with the 90-day implementation period and seven 
commenters argue for a longer period of time. These commenters contend 
that additional time is needed for airport operators, air carriers, and 
airport tenants to set up the administrative procedures necessary to 
implement the rule, coordinate with other airports on rights of 
transfer, budget and plan for required expenditures, and train 
personnel to implement the rule. Another states that an extended time 
period will prevent difficulties similar to those being experienced 
with the implementation of Sec. 107.14. ATA suggests a period of six 
months to a year and another commenter proposes phasing in the 
regulation, starting with the Category X airports one year after the 
effective date. AACI and AAAE recommend that the effective date, rather 
than the Federal Register publication date, be used to exclude 
individuals holding existing unescorted access privileges from the 
employment investigation requirements.
    FAA Response: The affected parties have been provided ample 
opportunities to comment on the implementation of Section 105 of the 
Act through ASAC recommendations, and in response to the NPRM (for 
which the comment period was extended), three public meetings, and the 
revised proposal in the SNPRM. The access investigation requirements of 
this rule should not place an excessive administrative burden on 
airport operators and air carriers. The requirement to modify the 
existing 5-year employment history verification and establish a 
procedure to conduct a criminal history records check, where necessary, 
utilizes many existing practices and procedures. However, as this rule 
will affect a wide spectrum of airport tenants, and in hopes of 
ensuring a smooth and orderly transition to the new procedures, the FAA 
is making the rule effective 120 days after publication in the Federal 
Register.

Section 107.31(b)--Access Investigation Requirements

Coverage of Access Investigation
    Of the 15 commenters responding on this issue, 13 concur with the 
FAA's proposal to use the 5-year rather than a 10-year employment 
history verification as the primary screening procedure. The commenters 
supporting the 5-year verification argue that covering more than 5 
years would produce less useful information because it would be 
difficult to find previous employers to provide reliable references, 
require more staff and take a longer time to complete, resulting in 
additional costs. According to these commenters, the expanded 
application form, which includes the applicant's certification as to 
prior criminal convictions, coupled with the enhanced 5-year 
verification is sufficient to alert management of a need for further 
investigation. One air carrier comments that it currently requires 
applicants to provide 10 years of employment information, although it 
only verifies the previous 5 years.
    The two commenters opposing the 5-year employment verification, 
Congressman Oberstar and the Families of Pan Am 103, believe that it 
will not reveal convictions that may have occurred in the previous 10 
years and that the proposal does not comply with the Act.
    FAA Response: At the SNPRM stage, the FAA considered increasing the 
employment history verification from 5 years to 10 years. It determined 
that to do so would increase the costs and time spent on the 
verification without appreciably enhancing aviation security. This 
could result in triggering relatively few additional records checks, 
but at an additional cost of at least $5.50 per access investigation or 
about $9 million over the next decade. However, as a result of the 
comments, the FAA carefully reviewed the 10-year employment history 
issue. The FAA determined that it would be useful and reasonable to 
require individual applicants to provide a 10-year employment history. 
The additional information will increase the likelihood of identifying 
12-month employment gaps and provide an additional decision tool to 
employers.
    Under the rule, airport operators, air carriers and other non-air-
carrier airport tenants are required to verify only the most recent 5 
years. However, employment gaps of more than 12 months must be resolved 
for the entire 10-year period or a records check accomplished. From a 
practical viewpoint, the verification of an individual's 5-year 
employment history provides an accurate indicator of the individual's 
background and of the overall veracity of the information provided by 
the applicant on the form. However, the additional employment history 
information available to the employer enhances the 5-year verification 
portion and increases the deterrent value of the application process. 
Applicants planning to fabricate employment history information will be 
faced with twice the challenge and their chance of discovery will thus 
be increased. Truthful applicants will identify employment gaps that 
require further evaluation.
    The 10-year period is also covered by requiring the applicant to 
list on the application convictions occurring in the past 10 years for 
any disqualifying crimes. The application form also must notify 
individuals that they will be subject to an employment history 
verification and possibly an FBI criminal history records check. 
Individuals who are subject to a criminal history records check would 
be disqualified if their record discloses a conviction for any of the 
listed crimes in the previous 10 years.
    Because the disqualifying crimes are serious felonies, an arrest, 
conviction, and incarceration would normally show up as a gap in the 
individual's employment history, thus triggering a criminal history 
records check. The requirement to conduct a criminal history records 
check should help discourage anyone with a conviction for one of the 
disqualifying crimes from applying for a position requiring unescorted 
access authority.
Convictions for Disqualifying Crimes
    Twelve commenters discuss the list of convictions for disqualifying 
crimes. Three of the commenters specifically agree that arson should be 
a disqualifying crime, as the FAA proposed in the SNPRM. AACI and AAAE 
oppose having arson included as a disqualifying crime. These 
organizations argue that, in their view, there is no significant 
history of arson occurring on an airport ramp.
    Ten commenters support disqualifying from unescorted access 
privileges a person found not guilty by reason of insanity for any of 
the disqualifying crimes. Some of the commenters argue that insanity is 
not a crime and, therefore, some form of rehabilitation should be 
allowed. As an example, the commenters refer to the State of California 
system that requires that a person found not guilty by reason of 
insanity must be certified as rehabilitated by a court before the 
individual's rights are restored. ATA 

[[Page 51859]]
points out that, in accordance with its reading of the Act and the 
Americans with Disability Act, the FAA has the legal authority and 
right to include insanity as a disqualifying factor. Another commenter 
states that insanity as a disqualifying factor should be determined on 
a case-by-case basis and that the final determination should be based 
on national and local FAA field office guidelines to ensure nationwide 
consistency.
    AACI and AAAE state that ``certain crimes aboard aircraft in 
flight'' is too vague and that this disqualifying crime needs to be 
better explained. They are also concerned that the regulation would not 
permit an employer to take into account rehabilitation. They argue that 
the Act is arbitrary because it assumes rehabilitation would 
``magically'' occur after 10 years, but cannot be taken into account 
before the 10 years for purposes of allowing unescorted access.
    Three commenters state that the regulation should not limit the 
employer to those crimes on the list. In their view, an employer should 
have some discretion to include other crimes or conditions as 
disqualifying.
    Two commenters assert there should be measures for punishing 
applicants who falsify the information they provide on the application 
forms or, at a minimum, disqualifying the individual from unescorted 
access. One of these commenters states that individuals convicted of 
any of the disqualifying crimes would not hesitate to falsify an 
application form and that stronger measures are needed, such as making 
it a Federal crime to falsify such information.
    FAA Response: As proposed, this rule adds felony arson to the list 
of disqualifying crimes. (In the SNPRM, FAA proposed ``arson''; the 
rationale for the clarifying change can be found below.) The deliberate 
nature of the offense and the safety and practical considerations of 
fueling aircraft make it logical to do so. Although the FAA is not 
aware of any instance where an individual with unescorted access 
privileges ever perpetrated an act of arson at an airport, arson has 
occurred at airports and is too dangerous an act to omit it from the 
list of disqualifying crimes.
    Also, in response to comments received on the initial notice and 
the SNPRM, this rule adds ``not-guilty by reason of insanity'' for any 
of the disqualifying crimes as a disqualifying factor. While 
recognizing that insanity is not a crime, the FAA concludes that 
insanity associated with a disqualifying crime should be a 
disqualifying condition because of the seriousness of these crimes and 
the difficulty involved in ascertaining recovery.
    The FAA has made some minor clarifying changes to the introductory 
language of Sec. 107.31(b). The phrase ``in any jurisdiction'' has been 
added to parallel the language of the Act. Also added is the phrase ``a 
crime involving * * *'' to the enumerated offenses in order to make 
clear that the intent of the rule is to disqualify an individual who 
has been convicted of one of the disqualifying offenses, even if the 
name of the statute under which the individual was convicted does not 
exactly match the language of the final rule. As long as the conviction 
involves a crime specified in the rule, the individual would be 
disqualified.
    In its comment to the NPRM, the Department of Justice's Criminal 
Division requested several changes to the rule language to which the 
FAA has agreed. The Division suggested that we limit disqualifying 
convictions for arson to felony arson in order to exclude instances of 
minor vandalism. The Division also requested that some of the 
disqualifying offenses be further defined. These revisions include:
     Sec. 107.31(b)(2)(xvii): the phrase ``or hostage taking'' 
has been added after ``kidnapping'';
     Sec. 107.31(b)(2)(xix): the phrase ``or aggravated sexual 
abuse'' has been added after ``rape'';
     Sec. 107.31(b)(2)(xx): the word ``use'' has been added 
before ``sale.''
    It is the FAA's understanding and intent that these changes clarify 
the intent of Congress but do not substantively expand the list of 
disqualifying crimes. The Criminal Division also requested that 
Sec. 107.31(b)(2)(xxv) be revised to include ``attempts'' to commit any 
of the aforementioned criminal acts. The Division states that while 
this section, as proposed, included a conviction for conspiracy to 
commit any of the enumerated offenses (as required by the Act), the 
conduct underlying an attempt may be more serious than that required to 
support a conviction of conspiracy. The FAA has therefore revised this 
section to include the phrase ``or attempt.''
    The Act provides no discretion for rehabilitation, requiring only a 
10-year period from the time of the conviction for the disqualifying 
offense. This rule also includes the 10-year period for instances of 
not guilty by reason of insanity.
    In the rule, the FAA does not attempt to further define the 
commission of ``certain crimes aboard aircraft'' because it is one of 
the named disqualifying crimes from the Act. An individual's criminal 
record would reflect convictions for this offense as a specific 
violation listed in 49 U.S.C. 46506.
    This rule limits the mandatory disqualifying crimes to those 
required by the statute and the additional disqualifiers discussed 
above. Apart from meeting the requirements of this rule for unescorted 
access privileges, an airport operator and air carrier will retain 
discretion to determine the suitability and qualifications of 
applicants for unescorted access privileges based on any other 
information available to them.
    This rule does not include penalties for falsifying application 
information. It is not a disqualifying condition covered by the Act, 
and the decision to deny access based upon falsification would be a 
local determination. However, substantial inconsistencies between 
required information provided on the application and information 
obtained during the access investigation would trigger a criminal 
history records check.
    If the access investigation discloses a conviction for a 
disqualifying crime in the previous 10 years measured from the date the 
verification is initiated, the individual may not be granted unescorted 
access authority. The Act does not allow the consideration of the 
possible rehabilitation of an individual.
    The disqualifying crimes identified in this rule include specific 
sections of 49 U.S.C. Chapters 463 and 465, sections of the United 
States Criminal Code, offenses named in the Act, and two additional 
disqualifiers.
    The specific sections of 49 U.S.C. Chapters 463 and 465 are: (b) 
Sec. 46706 forgery of certificates, false marking of aircraft and other 
aircraft registration violations; (c) Sec. 46308 interference with air 
navigation; (h) Sec. 46312 improper transportation of a hazardous 
material; (i) Sec. 46502 aircraft piracy; (j) Sec. 46504 interference 
with flightcrew members or flight attendants; (k) Sec. 46506 commission 
of certain crimes abroad aircraft in flight; (l) Sec. 46505 carrying a 
weapon or explosive aboard an aircraft; (m) Sec. 46507 conveying false 
information and threats; (n) Sec. 46502(b) aircraft piracy outside the 
special aircraft jurisdiction of the United States; (q) Sec. 46315 
lighting violations involving transporting controlled substances; and 
(r) Sec. 46314 unlawful entry into an aircraft or airport area that 
serves air carriers or foreign air carriers contrary to established 
security requirements.
    The disqualifying crime in 18 U.S.C. 32 is the destruction of an 
aircraft or aircraft facility.
    The other disqualifying crimes are: murder; assault with intent to 
murder; 

[[Page 51860]]
espionage; sedition; kidnapping or hostage taking; treason; rape or 
aggravated sexual abuse; unlawful possession, use, sale, distribution, 
or manufacture of an explosive or weapon; extortion; armed robbery; 
distribution of, or intent to distribute, a controlled substance; 
felony arson; conspiracy or attempt to commit any of these criminal 
acts; or a finding of not guilty by reason of insanity for any of these 
criminal acts.
    This rule does not limit the ability of airport operators and air 
carriers to review an individual's complete FBI criminal history 
record, although the record may not be requested unless one of the 
regulatory triggers is met. However, any decision to deny unescorted 
access may be attributed to this rule only if it is based on the 
individual's conviction within the previous 10 years of an enumerated 
crime. Any other adverse information contained in the criminal record 
does not disqualify an individual under this rule.

Section 107.31(c)--Elements of Access Investigations

Employment History Verification
    A number of commenters support the process for conducting the 
verification outlined in the SNPRM. In the SNPRM, the FAA proposed that 
applicants be required to prove their identity by providing two forms 
of identification (ID), including a photo ID. In the SNPRM, the FAA 
proposed that applicants would have to explain employment gaps of more 
than 12 months in the previous 5 years, and that employers would have 
to verify information on the application for unescorted access in 
writing, by telephone, or in person. The FAA solicited comments on 
whether other means of verifying an individual's employment, such as 
written documentation, should be acceptable in the verification 
process.
    Two commenters specifically support accepting documentation instead 
of telephone calls or visits to previous employers. One commenter 
suggests that legitimate gaps in employment can be documented by copies 
of school records or certified letters of references from physicians, 
clergy, or other professionals. Two commenters caution that the rule 
could have the unintended consequence of generating greater paperwork 
burdens on employers who must keep records of how they verified 
employment. Another commenter opposes adding security-related 
information requirements to its application forms, fearing that such 
forms could become needlessly lengthy.
    FAA Response:  This rule specifies the information required on the 
application, requires proof of the individual's identity, and requires 
verification of representations made by the individual. The FAA has 
crafted the rule using existing industry procedures and practices where 
possible to avoid creating unnecessary paperwork burdens. The 
individual applying for unescorted access privileges must complete an 
application form that includes: (1) the individual's full name, as well 
as any aliases or nicknames; (2) the dates, names, phone numbers, and 
addresses of the individual's previous employers for the last 10 years, 
with explanations for any gaps in employment of more than 12 months; 
(3) a notice that the individual will be subject to an employment 
history verification and possibly a criminal history records check; and 
(4) a question asking if the individual has been convicted of any of 
the disqualifying crimes or conditions during the previous 10 years.
    To assist the applicant in understanding the question on 
convictions, it would be advisable for the application to include a 
list of the disqualifying crimes or conditions. This rule permits 
supplementing an existing application form with a separate sheet 
requesting the required information and questions.
    The information on the application will help identify applicants 
who may have a disqualifying conviction. For example, an unexplained 
gap in employment may have occurred due to incarceration for a 
conviction of a disqualifying crime. The airport operator is 
responsible for verifying, or accepting certification that the 
information required on the employment application was verified, to the 
extent necessary, to validate representations made regarding the most 
recent 5-year period. This process is similar to that used for the 
existing 5-year employment verification conducted by telephone, in 
writing, or in person.
    This rule allows the use of documentation to verify an individual's 
previous employment history. However, it is important for airport 
operators and air carriers to carefully examine the documentation 
provided to guard against counterfeit documentation.
    In cases where a previous employer has gone out of business, a 
reasonable attempt to verify the period of prior employment should be 
made. Pay stubs, tax records or other documentation may be used to 
support the statements on the application.
    Section 107.31(n) requires maintaining a record of the method used 
to verify the applicant's most recent 5 years of employment and the 
results obtained. Section 107.31(n) also discusses the specific 
recordkeeping requirements.
Conditions Requiring a Criminal History Records Check
    Four commenters address the conditions that ``trigger'' the 
requirement for an FBI criminal history records check. One commenter 
fully supports the triggers proposed in the SNPRM although it requests 
that the triggers not be considered as limitations. This commenter 
suggests that an airport operator or air carrier could elect to conduct 
a complete criminal history records check if, for example, it found an 
unexplained gap in employment of less than 12 months. Another commenter 
questions the adequacy of a 12-month period asserting that a person 
could serve less than 12 months for a disqualifying crime or could be 
allowed to plead guilty to a lesser crime.
    AACI and AAAE believe that two of the conditions triggering a check 
are virtually identical to each other. These are: (1) the individual is 
unable to support statements made or there are significant 
inconsistencies between information provided on the application in 
response to questions required by the rule and that which is obtained 
through the verification process; and (2) information becomes available 
during the employment history verification indicating a possible 
conviction for one of the disqualifying crimes.
    FAA Response: If one or more of the conditions or ``triggers'' 
established by the rule is activated, a fingerprint-based check of the 
criminal records maintained by the FBI must be completed prior to 
determining if unescorted access authority will be granted. An airport 
operator or air carrier is not permitted to establish additional 
triggers for requesting a criminal check under the authority provided 
by this rule.
    The Act provides the statutory authority for airport operators and 
air carriers to access FBI records. The Act has been implemented by 
these regulations, which limit the circumstances under which the 
airport operator or air carrier can get the criminal history record. 
However, on its own authority, a potential employer could disqualify 
someone from unescorted access authority or refuse to hire an 
individual for an unexplained gap in employment of less than 12 months, 
or for any other reason. Of course, these actions would have to be 

[[Page 51861]]
consistent with other applicable laws. Also under its own authority, an 
employer could apply the employment verification (but not the FBI 
criminal history records check), to any employees, not just those 
covered by this rule.
    The ``triggers'' or conditions for the criminal history records 
check are based on information supplied by the aviation industry on the 
criteria used by some air carriers to screen job applicants. The 
combination of triggers provides the appropriate conditions to trigger 
the requirement for further review of the individual's background 
through a criminal history records check.
    Under the first trigger, an individual who is not able to 
adequately account for 12 months or more of unemployment over the past 
10 years in a manner that substantiates that he or she was not 
incarcerated for a disqualifying crime would be subject to a criminal 
history records check. Note that while there is no requirement to 
verify the information in an applicant's employment history for years 6 
to 10, there is an obligation to resolve periods of unemployment of 
more than 12 months. Unemployment for a 12-month period or more does 
not automatically trigger a check. Rather, the criminal check is 
required when the period of unemployment cannot be verified through the 
checking of appropriate documentation or references. For example, a gap 
can be satisfactorily explained by receipts for unemployment 
compensation, travel records, or other information providing sufficient 
evidence of an individual's whereabouts. In instances where an 
individual was self-employed, tax records, billing records, work orders 
or other means can be used to support the claims made on the 
application.
    Second, a criminal history records check is triggered if there is 
an inability to substantiate statements made, or if there are 
significant inconsistencies between the information provided by the 
applicant or the information obtained during the employment 
verification. This requirement is intentionally defined using broad 
terms to allow the airport operator and employer to determine what is 
acceptable. However, if an individual's employment cannot be verified, 
this is considered an inability to substantiate statements made.
    Third, if information becomes available during the course of the 
access investigation indicating a possible conviction for one of the 
disqualifying crimes, a criminal history records check is required.
    Responding to the question raised by AACI and AAAE, there is a 
significant difference between finding out during the access 
investigation process that information provided was not correct versus 
finding information that indicates the individual may have a conviction 
for a disqualifying crime. If incorrect information is provided, it 
does not necessarily indicate the presence of a disqualifying 
conviction that raises questions about the individual's truthfulness. 
An individual's truthfulness is a key component of the access 
investigation process. Lack of veracity suggest the need to investigate 
further to determine if the person is trying to conceal a conviction 
for a disqualifying crime.
    The purpose of the last trigger is to identify individuals that may 
require a criminal check based on any positive information identified 
during the access investigation. The trigger is intended to 
substantiate information provided.

Section 107.31(d)--Escorted Access

    Under Sec. 107.31(d) of the SNPRM, an individual who does not have 
unescorted access privileges may be permitted to enter a security area 
under escort. Five commenters object to allowing an individual who is 
the subject of a criminal history investigation access to a secured 
area even under escort because an on-going investigation indicates the 
likelihood of a criminal record. Three commenters also believe that the 
escort language proposed in Sec. 107.31(d) of SNPRM is inconsistent 
with the FAA's policy in Sec. 107.14.
    FAA Response: This rule requires individuals who have not been 
authorized to have unescorted access authority to be under escort, as 
defined in Sec. 107.1(b)(3), while the SIDA. The employer retains the 
option of completing the access investigation prior to hiring an 
individual needing unescorted access privileges rather than providing 
an escort while the investigation is pending. The primary means of 
determining an individual's eligibility for unescorted access is the 
access investigation, including a 5-year employment history 
verification, which normally takes from 5 to 10 days to complete. Thus, 
escorting is not necessary for most individuals while undergoing the 
check because the applicants would not be employed in a position whose 
utility is predicated on unescorted access until completion of the 
employment history verification.
    The primary reason for security access under this rule is for 
individuals awaiting a criminal history records check.
    Escorted access is permissible while in the security sensitive area 
even though a criminal history records check has been triggered. A 
criminal history records check may take from 30 to 90 days to complete; 
escorted access is allowable when the employment history verification 
triggers one of the conditions requiring a criminal check. There is 
nothing in the rule language that requires an airport operator to 
provide escorted access into a SIDA to an individual undergoing a 
criminal history records check.
    Under the FAA's policy on Sec. 107.14(a) access controls, an 
individual with Sec. 107.14(a) access privileges may not be escorted 
through an access point meeting the requirements of Sec. 107.14. Each 
person with Sec. 107.14(a) access must be subjected to the access 
control system. Because Sec. 107.31(d) is applicable only to 
individuals not authorized for unescorted access, the escort language 
in this section is consistent with the FAA's policy on Sec. 107.14.

Section 107.31(e)--Exceptions to the Investigation Requirements

    Six commenters respond to the proposed exceptions from the 
employment investigation included in the SNPRM. The exceptions included 
Federal, State, and local government employees who as a condition of 
employment have been subject to an employment investigation; crew 
members of foreign air carriers covered by alternate security 
arrangements; individuals who have been continuously employed in a 
position requiring unescorted access by another airport operator, 
tenant, or air carrier; and individuals who have been authorized access 
to the U.S. Customs Service security area of an airport.
    Under this rule, certain categories of individuals are excluded 
from the access investigation requirement. The FAA expects each airport 
operator to develop the procedures it uses to implement this section 
and, where appropriate, issue the individual identification media 
indicating authorization for unescorted access privileges.
Government Employees
    Two commenters request selective application of the exception for 
Federal, State, and local government employees because employment 
verification by different entities may not be as stringent as that 
proposed in the SNPRM. The commenters also raise concerns over the 
issue of Federal and local law enforcement officers observing the 
airport's access rules and requirements. Another commenter wants to 
ensure that the final rule does not alter the 

[[Page 51862]]
access authority of FAA Safety Inspectors using Form 8000-39.
    FAA Response: This rule adopts the language proposed in the SNPRM 
that no additional investigation is required for Federal, state, and 
local government employees who have been subjected to an employment 
investigation by their respective agencies. Typically, the government 
employer subjects applicants to an employment investigation that is at 
least equivalent to that proposed in this rule. For example, both 
Standard Form 171 and Optional Form 306 requires Federal applicants to 
disclose convictions, and the Office of Personnel Management, where 
appropriate, conducts a criminal history records check. The rule also 
provides an option to except state and local governments. This 
exception will reduce the cost and burden of implementing this rule, 
while maintaining an effective level of security. Airport operators 
should work with representatives from the Federal, state and local 
government agencies to resolve the type of biographical information 
needed to receive the identification media.
    With regard to using Form 8000-39, this rule will not have any 
effect. Form 8000-39 will continue to authorize the FAA Inspectors to 
be present in an air operations areas to conduct short term duties 
associated with their safety related responsibilities.
Foreign Air Carrier Employees
    Five commenters address the application of the employment 
investigation to employees of foreign air carriers. ATA believes the 
alternate security arrangement for foreign air carrier flightcrew 
members included in the SNPRM creates ``serious competitive imbalances 
between U.S. and foreign carriers. . . .'' ATA implies that the 
advantage would be to the foreign carriers.
    ATAC states that it does not object to the requirement to conduct 
employment investigations for individuals employed by Canadian carriers 
in the U.S. applying for unescorted access. However, ATAC contends that 
the alternative program for transient air crews is unnecessary because 
Canadian carriers already subject their air crews to a ``criminal/
subversive/financial security check'' before a Transport Canada Airside 
Restricted Area Pass to operate from Canadian airports is granted. ATAC 
argues that this security check exceeds the employment investigation 
requirement in the SNPRM and that the FAA should, therefore, allow 
Canadian air crews unrestricted access in U.S. airports or at least to 
areas and offices necessary for operational functions.
    A foreign air carrier raises several concerns. The first is related 
to section 105(a) of the Act which states: ``Nothing in this subsection 
shall be construed as requiring investigations or record checks where 
such investigations or record checks are prohibited by applicable laws 
of a foreign government.''
    This commenter states that the investigation of employees hired in 
another country and assigned to duty in the U.S. could require an 
investigation of records in some other country where privacy laws 
prohibit such an investigation. The commenter recommends addressing 
this conflict in the rule by stating that such investigations be 
performed only to the extent permitted by law in the foreign country.
    This foreign air carrier requests that the alternate security 
procedures be expanded to include all crew members and to areas beyond 
the footprint of the aircraft. (The preamble to the SNPRM explained an 
example of an alternate system as language in the airport security 
program permitting a foreign air carrier flightcrew member to have 
unescorted access or movement limited to the footprint of their 
aircraft.) The commenter asks that the FAA's final rule explicitly 
require airport operators to consult with foreign air carriers to 
identify areas to which crew members need access using the alternate 
security arrangement.
    This carrier also suggests that the SNPRM be revised to allow 
foreign air carriers to use temporary personnel without performing an 
employment investigation. According to the commenter, these personnel 
could be subject to alternate security arrangements, specified in an 
airport operator security program, restricting access of such personnel 
to the areas necessary for performance of their jobs. The carrier 
contends that the revision is needed because foreign air carriers often 
require services of special relief personnel at particular airports for 
brief periods. The commenter believes that temporary duty assignments 
are vital to foreign air carriers, which have significantly fewer 
permanent personnel based in the U.S. than do domestic carriers. 
Therefore, an employment investigation of such employees is not 
feasible because it would counteract the flexibility needed to quickly 
hire temporary employees for unanticipated increases in workload.
    FAA Response: This rule adopts the proposal outlined in the SNPRM, 
with one modification for foreign air carrier employees. The Act, and 
hence this rule, apply only to U.S. airports. Therefore, under this 
rule, foreign nationals and U.S. citizens working in the U.S. for a 
foreign air carrier will be subject to an access investigation for 
unescorted access privileges in a manner similar to non-air-carrier 
airport tenants. While the airport operator is responsible for ensuring 
that the investigation is completed, the foreign air carrier could 
perform the employment history verification as it currently does at 
most airports.
    This rule allows an airport operator to implement an alternate 
security arrangement in its approved airport security program for 
foreign air carrier crew members. The final rule uses the broader term 
``crewmember'' rather than ``flightcrew member'' as proposed in the 
SNPRM. In accordance with present FAA policy on ramp movement, however, 
the alternate arrangement would be limited to foreign flightcrew 
members (i.e., captain, second-in-command, flight engineer, or company 
check pilot) in the immediate vicinity of the aircraft to which they 
are assigned. The FAA is willing to consider the merits of including 
cabin crew and expanding the scope of ramp movement for foreign air 
carrier crew members on a case-by-case basis. Any alternate 
arrangements should be developed with and coordinated through the 
airport operator.
    Responding to the concerns raised by ATA over the proposed 
authority to permit alternate arrangements for foreign crew members, 
the FAA has determined that it is reasonable from a security 
standpoint, and consistent with international practices, to permit 
limited access (around the assigned aircraft). Failure to provide 
alternate procedures for foreign air carrier crews could result in the 
adoption of additional requirements for investigations by foreign 
countries for U.S. air carrier personnel. There are significant 
operational restrictions associated with using the alternate 
arrangement that outweigh any associated financial advantages that may 
accrue to a foreign air carrier. In addition, there is a very low 
probability of detecting disqualifying convictions for a foreign 
national based outside the U.S. through an investigation of FBI records 
because those records normally include only arrests and convictions 
occurring in the U.S.
    This rule does not specifically allow for the acceptance of the 
Transport Canada Airside Restricted Area Pass as meeting the rule's 
requirement. However, the required access investigation is more easily 

[[Page 51863]]
accomplished for Canadian flightcrew members as a result of that 
country's program. The approach of the Canadian system, or similar 
systems in use by other countries, could result in the facilitation of 
using documentary evidence of employment verification.
    The FAA agrees that the Act limits employment investigations to the 
extent allowable by the law in the foreign country. However, if the 
employment history verification or other aspects of the access 
investigation could not be completed as a result of another country's 
law, this would trigger a need to conduct the criminal history records 
check.
    The problem of temporary employees is not specific or limited to 
foreign carriers. This rule would apply to any individual applying for 
unescorted access privileges. Considering the short period of time it 
takes to perform the employment history verification portion of the 
access investigation (which would authorize most individuals for 
unescorted access authority), the FAA contends this is not an 
unreasonable requirement; moreover, if the assignment is of short 
duration, escorting may be the simplest solution.
Transfer of Privilege
    Two commenters believe that an individual who has been continuously 
employed by an air carrier, airport operator, or non-air-carrier tenant 
should be authorized unescorted access without having to be 
continuously employed in a position requiring unescorted access. 
Another commenter recommends that the FAA implement a uniform process 
for accepting transfers of individuals, so that there will be 
nationwide consistency in applying this provision. ATA expresses 
concern that the authority to grant unescorted access privileges to an 
individual transferring from one air carrier to another should be the 
exclusive responsibility of the air carrier. AACI and AAAE also 
question whether individuals transferring their authority for 
unescorted access must receive SIDA training at the new location.
    FAA Response: This final rule adopts the proposal included in the 
SNPRM that provides an exception to the access investigation 
requirements for individuals who have already been subject to one. 
However, this rule retains the requirement that an individual 
transferring unescorted access privileges must have been continuously 
employed in a position requiring unescorted access since first being 
authorized unescorted SIDA access. The requirement to be continuously 
authorized should not present a burden for companies transferring 
individuals in positions within a company.
    The rule does not attempt to establish uniform procedures for 
accepting transfers; rather, the rule sets the minimum requirement for 
continuous employment in a position with unescorted access privileges. 
The FAA expects the airport operator and the air carrier to cooperate 
in determining the process for an individual transferring from one 
carrier to another.
    This rule does not affect the regulatory requirement for SIDA 
training. Under Sec. 107.25 and associated FAA policy, individuals who 
have been subject to SIDA training who subsequently transfer their 
unescorted access authority must receive site-specific SIDA training at 
the new airport.
Individuals Subject To Investigation By Customs
    One commenter suggests that the FAA coordinate with the U.S. 
Customs Service on its pending access rule for Customs Service security 
areas of an airport. The commenter's concerns focus on the effect on 
operations, costs, and possible duplication of the two rules.
    FAA Response: This rule permits an airport operator to accept the 
background checks performed by the U.S. Customs Service to meet the 
FAA's access investigation requirement. Accepting the background 
investigation by Customs avoids a redundant check, while providing an 
equivalent or higher level of security for individuals with unescorted 
access. Because the Customs check is more extensive (it includes 
misdemeanor theft convictions) than that contained in this final rule, 
failure to obtain access authority to the Customs area would not 
preclude an individual from obtaining unescorted access to the SIDA, 
but would require the individual to be subjected to an access 
investigation under this rule.

Section 107.31(f)--Investigations by Air Carriers and Airport Tenants

    Eight commenters address issues concerning the airport operator's 
acceptance of air carrier employment investigations and non-air carrier 
tenants' employment history verifications.
    ATA notes that in the SNPRM preamble an airport operator is given 
the latitude to expand the scope of the employment history verification 
to cover areas beyond that required under the proposal. ATA urges the 
FAA to limit an airport operator's authority to impose additional 
verification requirements on air carriers. It recommends that the final 
rule clearly state that the air carrier is exclusively responsible only 
for fulfilling the employment investigation requirements of 
Sec. 108.33.
    ATA and RAA express concern that the SNPRM preamble explanation of 
Sec. 107.31(F) allows an airport operator discretion to accept 
certification from an air carrier. These commenters recommend that the 
process be mandatory thus requiring the airport operator to accept 
their checks. The carriers have concerns that airport operators may 
require employment investigations beyond that necessary to meet the 
regulatory requirement.
    One commenter states that an airport operator should be able to 
rely on certification by any tenant employer for the employment 
verification. Another commenter believes that the authority to certify 
employees should extend to part 129 carriers who operate in accordance 
with an exclusive area agreement and to indirect air carriers subject 
to part 109.
    Three commenters oppose the requirement that the airport operator 
be responsible for the criminal history records check of all airport 
tenants other than U.S. air carriers and two commenters support this 
requirement. One commenter argues that the results of any criminal 
investigation would be most beneficial to the direct employer, as would 
information concerning arrests with no disposition. One commenter 
opposes any delegation to air carriers of the responsibility for 
criminal history records checks of their contractors because many of 
these contractors serve more than one air carrier. According to this 
commenter, conducting criminal history records checks on contractors 
should be the responsibility of the airport operator.
    FAA Response: This final rule adopts the procedures proposed in the 
SNPRM for accepting air carrier access investigations and non-air-
carrier tenant employment history verifications. Regarding the 
expansion of the employment history verification requirements, this 
rule establishes the guidelines for an acceptable verification. Each 
airport operator will specify these requirements in its security 
program subject to FAA approval. The FAA will limit approval to the 
employment history verification requirements outlined in this rule.
    Under Sec. 108.33, air carriers perform the access investigation 
for their employees. Therefore, it is logical that an airport operator 
would accept the air carrier's investigation without placing any 
additional requirements on the carrier. An airport operator's receipt 
of 

[[Page 51864]]
the air carrier's certification satisfies its regulatory obligation. 
The airport operator may accept a written statement that the employment 
history verification and, where appropriate, the criminal history 
records check were performed as part of the process of an air carrier 
issuing identification credentials to its employees. If a specific air 
carrier employee or its contractor employee is receiving airport-issued 
identification, the airport operator must receive certification for 
each employee prior to issuing an identification credential. The 
certification should include a statement that the investigation was 
conducted in accordance with Sec. 108.33 and provide the name(s) of the 
individuals requiring the unescorted access authority credential. 
However, the air carrier should retain the specific documentation 
supporting the access investigation.
    The rule also includes a provision permitting an airport operator 
to accept written certification from airport tenants that they have 
reviewed the applicant's 10-year employment history and verified the 
most recent 5 years of that history. Again, the airport tenant should 
retain the specific documentation supporting this certification. 
Pursuant to the Act, only airport operators and air carriers can 
request a criminal history records check, although the costs of such 
checks will normally be borne by the employer. Thus, the airport 
operator must process criminal history records checks for all airport 
tenants other than U.S. air carriers. However, the airport operator is 
responsible only for the unescorted access privilege determination. 
Employment-related decisions such as hiring and firing, and an 
individual's status while a criminal history records check is pending, 
rest with the airport tenant.
    For purposes of this rule, non-air-carrier tenants include airline 
food service companies, fixed base operators, foreign air carriers, and 
indirect air carriers subject to part 109 whose employees receive 
airport identification.

Section 107.31(g)--Appointing Contact

    Six commenters respond to the issue of the airport operator 
appointing a person who will be responsible for reviewing the results 
of the employment investigation, determining an individual's 
eligibility for unescorted access and serving as the liaison if the 
individual disputes the results of a criminal check. As proposed in the 
SNPRM, the appointed person could delegate the day-to-day duties, but 
would serve as the FAA's point of contact with the airport for purposes 
of monitoring compliance with the employment investigation requirement. 
In the SNPRM, the FAA also solicited comments on whether it should 
require the contact to be the airport security coordinator (ASC). Five 
commenters acknowledge that the ASC would be the contact, but believe 
the FAA should not require or specify the position.
    FAA Response: This final rule requires the airport operator to 
designate the ASC required under Sec. 107.29 as the contact for access 
investigations. The ASC can delegate the duties while continuing to 
serve as the FAA's point of contact with the airport for purposes of 
monitoring compliance with this rule. This is consistent with the 
requirements of Sec. 107.29 that the ASC serve as the airport 
operator's primary contact for security-related activities and 
communications with the FAA.
    The ASC, or designee, is responsible for reviewing the results of 
the access investigation and determining an individual's eligibility 
for unescorted access privileges. The ASC also serves as the liaison 
when the individual disputes the results of the criminal history 
records check that revealed information that would disqualify the 
person from unescorted access.

Section 107.31(h)--Individual Notification

    The FAA received no comments on this section.

    Note: An individual covered by this rule must be notified of the 
need for a criminal history records check prior to commencing the 
check. Because the FAA will serve as the entity to process the 
criminal history records check required by this rule, this section 
of the final rule is modified from that proposed in the SNPRM by 
removing the language related to designating an outside entity.

Section 107.31(i)--Fingerprint Processing

    The Act provides the FAA Administrator, in consultation with the 
Attorney General, the authority to designate persons to obtain and 
transmit fingerprints, and receive the results of a criminal history 
records check. In the SNPRM, the FAA proposed allowing airport 
operators and air carriers to directly contact the FBI or use an 
outside entity to request and process the criminal history records 
checks. The Department of Justice has agreed that airport operators and 
air carriers may access the criminal records system. The FBI indicates 
concerns about the FAA's SNPRM proposal to have multiple entities 
request the checks. The FBI recommends that the FAA serve as the 
central processor, suggesting the use of a system similar to that of 
the Nuclear Regulatory Commission (NRC). The NRC serves as the 
processor of FBI criminal history records checks for the nuclear 
industry.
    Nine comments address the issue of having a centralized processor 
or ``clearing house'' batch and process the FBI criminal history 
records check requests. Many of the commenters note that the proposed 
language in the SNPRM would result in far fewer criminal history checks 
being conducted (compared to the NPRM) and question whether a non-
governmental clearing house is feasible for so few requests. As an 
alternative, they recommend that the FAA serve as the processor.
    Three commenters focus on the related issue of screening criminal 
history records check results. RAA supports the concept in the SNPRM 
that allows the airport operator and air carriers to review an 
individual's complete record. Two commenters state that a complete FBI 
record should not be sent to the airport operator or air carrier; 
rather, the records should be screened in some manner to determine 
whether a disqualifying conviction occurred and only that information 
provided. These commenters believe there is a significant privacy issue 
involved in releasing an entire record. NATA believes that the FAA 
should check the records and report any disqualifying convictions to 
the airport operator. AOPA suggests developing a reply form for the 
airport operator to submit along with the criminal history records 
check card. AOPA recommends that the FBI could use this form to return 
a response to the airport of ``qualified or disqualified'' for 
unescorted access privileges. AOPA also states that because the FAA is 
proposing to mandate these criminal checks, it must take an active role 
in protecting the rights of individuals affected by this rule and 
institute strict procedures to protect sensitive personal information.
    Seven commenters express concerns over the authority needed by 
airport operators and air carriers to gain access to the FBI's criminal 
history record database. Another commenter suggests that the FAA obtain 
access authority to the National Crime Information Center (NCIC) 
automated database to allow for a ``name check'' of individuals 
applying for unescorted access authority.
    FAA Response: The FAA has consulted with the Attorney General, as 
required by the Act, and has obtained the Department of Justice's 
concurrence in the following procedures. The FAA is following the 
recommendations made by the commenters, including the FBI, and will 
serve as the central processor for the criminal history records check 

[[Page 51865]]
requests submitted to the FAA by airport operators and air carriers. 
The FAA will serve as the clearinghouse, in a manner similar to the NRC 
and will ensure fingerprint cards are forwarded to the FBI in a timely 
and cost effective manner. A $24.00 fee will enable the FAA to recover 
its cost of processing and obtaining the FBI records. The FAA will 
charge the same $24.00 user fee currently levied by FBI on the banking, 
securities, commodities futures trading industries and the NRC. The fee 
is subject to increase without prior notice upon determination by the 
FBI. Parties subject to this rule will be notified of fee increases by 
amendments to this rule in the future.
    Upon completion of the FBI records check, the complete FBI record 
will be forwarded to the requesting entity. The regulation places 
specific limits on the use of the information contained in the criminal 
history records check. This issue is addressed in the preamble 
discussion of Sec. 107.31(m).
    The FAA has researched the possibility of using the NCIC system to 
allow airport operators and air carriers an alternative method for 
obtaining criminal history information for individuals applying for the 
privilege of unescorted access. As stated in the Notice of Public 
Meetings, and as discussed at the public meetings held on the initial 
notice, under published policy established by the NCIC's Advisory 
Policy Board, the NCIC is not available to check the records of 
applicants for employment in aviation related industries. In addition, 
checking an individual's name and other identifying information does 
not provide the same level of positive identification that derives from 
the use of a check based on an individual's fingerprints.
    This final rule includes procedures for collecting fingerprints and 
requires that one set of legible fingerprints be taken on a card 
acceptable to the FBI (i.e., Federal Document 258). The airport 
operator may choose to have the airport law enforcement officers take 
the fingerprints. The FAA also requires verifying the individual's 
identity when taking his/her fingerprints. The individual must present 
two forms of identification, one of which must bear the individual's 
photograph. A current driver's license, military identification, or 
passport are examples of acceptable photographic identification. In 
addition, the fingerprint cards must be handled and shipped in a manner 
that protects the privacy of the individual.
    Airport operators will send the fingerprint cards to the Federal 
Aviation Administration, 800 Independence Ave. SW., Washington, DC 
20591 (Attn: ACO-310, Access Processing). A corporate check, certified 
check, cashier's check or money order made payable to the ``U.S. FAA'' 
for $24.00 per card must accompany the request.
    The FAA will verify that the information required on the 
fingerprint cards is complete and forward the cards for processing. 
After the FBI completes the search of its index system, the FAA will 
receive the results and, in turn, will forward the results to the 
airport operator. Under this system, the airport operator will receive 
complete results of the check.

Section 107.31(j)--Making the Access Determination

    Six commenters raise concerns over the airport operator or the air 
carrier being responsible for resolving any arrests for disqualifying 
crimes that have no disposition listed on the FBI criminal history 
records check result. ATA and RAA also suggest that the individual 
seeking employment should be responsible for furnishing any required 
disposition documentation.
    FAA Response: This final rule requires the airport operator to 
ascertain the disposition of arrests for any of the enumerated offenses 
when no disposition has been recorded in the FBI's records, e.g., the 
case is pending or the FBI has no record. This task would be conducted 
with the affected individual and the jurisdiction where the arrest took 
place in order to determine whether a disposition has been recorded in 
that jurisdiction but not forwarded to the FBI. While the investigation 
will require assistance from the individual, it is the responsibility 
of the airport operator or the air carrier to complete the 
investigation. In determining whether to grant unescorted access to an 
individual with an arrest for one of the disqualifying crimes with no 
disposition, the airport operator should weigh all relevant information 
available on the individual, including the results of the access 
investigation.

Section 107.31(k)--Availability and Correction of FBI Records and 
Notification of Disqualification

    Two commenters state that allowing applicants to challenge the 
accuracy of the FBI record will require involvement by the airport 
operator in a possibly lengthy and expensive process.
    FAA Response: The Act requires that individuals have the right to 
challenge the accuracy of their criminal history record. While such a 
challenge may be a time consuming process, the FAA has no discretion to 
eliminate this right. This rule does require the individual to notify 
the airport operator or its designee within 30 days of receipt of the 
record of his or her intent to correct any information believed to be 
inaccurate. Because the FBI maintains the records and has established 
procedures to address possible inaccuracies, it is appropriate to 
forward a copy of any requests for correction to the FBI. However, the 
FBI prefers that the actual request be made by the individual directly 
to the agency (i.e., federal, state or local jurisdiction) that 
supplied the questioned criminal history information to the FBI.
    When taking the individual's fingerprints, the airport operator 
must notify the individual that he or she will be provided, upon 
written request, a copy of the results of the FBI criminal history 
records check prior to rendering the access decision.
    If the airport operator is not notified by the individual within 
the 30-day period that he or she intends to dispute the results, the 
airport operator may make the final access decision. The airport 
operator is neither obligated to provide the individual with an escort 
before the correction (if any) is made, nor is the employer obligated 
to hire the applicant after the record is corrected. However, after 
being informed that the disqualifying information has been corrected, 
the airport operator would have to obtain a copy of the revised FBI 
record before the individual could be authorized for unescorted access.
    If an individual is disqualified for unescorted access privileges 
based on the findings of the criminal history record check, the 
individual must be notified that such a determination has been made.

Section 107.31(1)--Individual Accountability

    Two commenters address the issue requiring an individual with 
unescorted access authority to report any disqualifying convictions 
occurring after the completion of the employment investigation. One 
commenter concurs with the decision not to require a recurrent 
investigation and another states that the SNPRM did not adequately 
address the procedures that would apply in these cases.
    FAA Response: This final rule adopts the ``self-disclosure'' 
provision included in the SNPRM. Any person holding unescorted access 
authority who is convicted of any of the disqualifying crimes after 
January 31, 1995, must surrender the identification media to the issuer 
within 24 hours of learning of the conviction. This final rule does not 
provide additional guidance on this 

[[Page 51866]]
requirement. However, the FAA expects that the regulated parties will 
develop local procedures to implement this provision. In such cases, 
the employer is likely to be aware of the circumstances and take 
immediate action to revoke the access authority.
    Any individual failing to report a disqualifying conviction or to 
surrender his or her SIDA identification credential issued under this 
section is subject to possible FAA enforcement action, including civil 
penalty liability.

Section 107.31(m)--Limits on Dissemination of Results

    The FAA received no comments on this section.

    Note: As required by the Act, this rule also includes limits on 
the dissemination of the criminal history information. The FAA 
limits distribution of such information to: (1) the individual to 
whom the record pertains or someone authorized by that person; (2) 
the airport operator; and (3) the individuals designated by the 
Administrator, e.g., FAA special agents.

Section 107.31(n)--Recordkeeping

    Six commenters address the requirements for maintaining records. 
ATA requests that the final rule clearly require maintaining only that 
information necessary to satisfy the regulation requirements. ATA is 
concerned that FAA inspectors may interpret the record provision as 
providing discretion to require the maintenance of information beyond 
that which is necessary to meet the requirements set forth in the 
SNPRM.
    Two airport operators express concerns over the administrative 
burden of maintaining all employment history records of non-air-carrier 
tenants. One commenter agrees that maintaining the criminal history 
records checks is the airport operator's responsibility and that this 
should not be a burden to airports because they already keep 
confidential information.
    FAA Response: The FAA has determined that the airport or air 
carrier shall maintain a written record for individuals granted 
unescorted access authority that includes specific information on the 
employment history verification and the results of an FBI criminal 
history records check, if conducted. The burden on airport operators to 
maintain records for tenants already exists because airport operators 
maintain records for individuals who are currently issued 
identification media. This rule standardizes the information to be 
maintained to include the results of the FBI criminal history records 
check, where applicable. The airport tenant can continue to maintain 
the more comprehensive record and associated paperwork of the 
employment history verification.
    The FAA has modified this section from that proposed in the SNPRM 
to clarify that an airport operator need not maintain comprehensive 
records and documentation for air carrier employees. As discussed under 
Sec. 107.31(f), the record can be a certification from the air carrier 
that the access investigation was performed. The airport operator would 
have no further recordkeeping requirements related to air carrier 
employees. Furthermore, in order to permit the destruction of FBI 
criminal history records check results and minimize storage problems 
for airport operators and air carriers, the recordkeeping requirements 
allow for the retention of only a certification that the check was 
completed and revealed no disqualifying convictions. Another minor 
editorial change in this regard was the deletion of the reference to 
airport tenants providing certification of criminal history records 
check results since these parties are not authorized to request such 
checks.
    This final rule contains two recordkeeping requirements: (1) A 
record indicating that the applicant's 10-year employment history has 
been reviewed and the most recent 5-year employment history verified, 
and (2) a copy of the results of the criminal history record check 
received from the FBI or certification of same, where appropriate. The 
airport operator can accept written certification from airport tenants 
that the employment history was reviewed and the verification was 
performed. However, the airport tenant should maintain a record of 
calls made, plus a record of correspondence or any other documents 
received. The tenant must make this information available to the 
airport operator when requested by the FAA for inspection purposes.
    For individuals subject to a criminal history records check, the 
records received from the FBI must be maintained in a manner that 
prevents the unauthorized dissemination of its contents.
    The airport operator must maintain a written record until 180 days 
after termination of the individual's authority.

Section 108.33--Employment Verification

    This rule authorizes air carriers to perform the access 
investigations for its employees and contractors in a manner similar to 
that required under Sec. 107.31. The air carrier may provide a general 
certification to an airport operator under Sec. 107.31(f) that the 
access investigation was performed as part of issuing identification 
credentials to its employees. When an individual air carrier employee 
or its contractor employee is investigated by the carrier for receipt 
of airport-issued identification media, the air carrier must provide 
the airport operator with certification that the investigation was 
performed for each employee.
    The requirements for an air carrier performing the access 
investigation are identical to those required of an airport operator.

Regulatory Evaluation Summary

    Changes to Federal regulations are required to undergo several 
economic analyses. First, Executive Order 12866 directs each Federal 
agency to propose or adopt a regulation only upon a reasoned 
determination that the benefits of the intended regulation justify its 
costs. Second, the Regulatory Flexibility Act of 1980 requires agencies 
to analyze the economic effect of regulatory changes on small entities. 
Third, the Office of Management and Budget directs agencies to assess 
the effect of regulatory changes on international trade. With respect 
to this rule, the FAA has determined that it: (1) is ``a significant 
regulatory action'' as defined in section 3 (f)(4) of the Executive 
Order; (2) is significant as defined in the Department of 
Transportation's Regulatory Policies and Procedures; (3) will not have 
a significant impact on a substantial number of small entities; and (4) 
will not constitute a barrier to international trade. Since the rule is 
not significant under section 3 (f)(4) of the Executive Order, a full 
regulatory analysis, which includes the identification and evaluation 
of cost-reducing alternatives to this rule, has not been prepared. 
Instead, the agency has prepared a more concise analysis of this rule 
which is presented in the following paragraphs.
    The expected costs of the rule consist of two parts: (1) the cost 
of enhancing the employment history verification process; and (2) the 
cost of conducting a criminal history records check on applicants whose 
employment verification triggers it. Employers may avoid the latter 
cost by simply choosing to end the employment process for the 
individual in question.
    First-year costs for the industry will range from $0.5 to $1.4 
million. Airports, air carriers, and other airport tenants will incur 
these costs. The cost of the rule comes from the time necessary to 
complete an estimated 64,000 employment history verifications by non-
air-carrier airport tenants and from an estimated 970 to 1,940 criminal 


[[Page 51867]]
history records checks by all airport and air carrier employers. The 
FAA estimates that, in 1995, 194,000 employees will apply for 
unescorted SIDA access privilege. Between 1995 and 2004, the total cost 
of the new requirements will range from $6.2 to $16.2 million. The 
discounted cost ranges from $4.3 to $11.1 million.
    Because aviation security requires an intricate set of interlocking 
measures, the benefits ascribed to this final rule derive from 
strengthening the U.S. civil aviation security network. By enhancing 
the civil aviation security network, this final rule decreases the 
possibility that a deadly and costly terrorist or criminal act will 
occur. This final rule assures a greater measure of safety through 
tighter screening of individuals applying for jobs requiring unescorted 
secure area access. Specifically, this final rule reduces the civil 
aviation security risk by further assuring that persons who have 
committed certain crimes do not have access to airport secure areas.
    The FAA has determined that the final rule provides sufficient 
additional security to make it cost beneficial.
    The rule will have a negligible impact on international trade. 
Also, the proposed regulatory action will not have a significant 
economic impact on a substantial number of small entities.

Final Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA) helps to assure that 
Federal regulations do not overly burden small businesses, nonprofit 
organizations, and small cities. The RFA requires regulatory agencies 
to review rules which may have ``a significant economic impact on a 
substantial number of small entities.'' A substantial number of small 
entities, defined by FAA Order 2100.14A--``Regulatory Flexibility 
Criteria and Guidance,'' is more than one-third, but not less than 
eleven, of the small entities subject to the existing rule. To 
determine if the rule will impose a significant cost impact on these 
small entities, the annualized cost imposed on them must not exceed the 
annualized cost threshold established in FAA Order 2100.14A.
    Small entities potentially affected by the rule are small airports, 
air carriers, fixed-base operators, and catering companies. However, 
many of the requirements of the rule are already standard procedures 
for some of these entities; and the cost of a criminal history records 
check is minimal because so few employers are expected to utilize it 
for their applicants. The FAA estimates the average cost of upgrading 
an employee verification is $15.00. This estimate incorporates the cost 
of a criminal history records checks.
    Aircraft Repair Facilities: FAA Order 2100.14A defines small 
aircraft repair facilities as those with 200 employees or less. The FAA 
has estimated the cost threshold for small operators to be $4,130 in 
1992 dollars. To exceed this threshold, a facility would have to hire 
275 employees ($4,130/$15.00) per year. This means that the facility 
would have to regularly employ 786 persons (assuming a 35 percent 
turnover rate: 275/.35). If a firm employed that many people, it would 
be a small entity since it is over the size threshold of 200 employees.
    Caterers: The FAA evaluates small caterers as aircraft repair 
facilities since FAA Order 2100.14A does not define a threshold for 
caterers. This order defines the criteria as 200 employees or less for 
the size threshold and $4,130 for the cost threshold. Hence, like the 
aircraft repair facilities, in order to exceed the cost threshold, 
caterers would have to employ 786 persons, which would exceed the size 
threshold of 200 employees.
    In conclusion, the rule will not impose a significant impact on a 
substantial number of small entities.

Federalism Implications

    This rule does not have a substantial direct effect on the states, 
on the relationship between the national government and the states, or 
on the distribution of power and responsibilities among the various 
levels of government. Most airports covered by the rule are public 
entities (state and local governments). However, relatively few of the 
covered individuals are actually employed by the airport operator, and 
most of the costs for the required investigations would be borne by the 
airport tenants and air carriers. Thus, the overall impact is not 
substantial within the meaning of Executive Order 12612. Therefore, in 
accordance with that Executive Order, it is determined that this rule 
would not have sufficient Federal implications to warrant the 
preparation of a Federalism Assessment.

International Civil Aviation Organization and Joint Aviation 
Regulations

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Authority Standards and Recommended 
Practices to the maximum extent practicable. The FAA is not aware of 
any differences that this final rule will present.

Paperwork Reduction Act

    Under the requirements of the Federal Paperwork Reduction Act, the 
Office of Management and Budget has approved the information collection 
burden for this rule under OMB Approval Number 2120-0564. For further 
information contact: The Information Requirements Division, M-34, 
Office of the Secretary of Transportation, 400 Seventh Street, SW., 
Washington, D.C., 20590, (202) 366-4375 or Edward Clarke or Wayne 
Brough, Office of Management and Budget, New Executive Office Building, 
Room 3228, Washington D.C., 20503, (202) 395-7340.

Conclusion

    For the reasons discussed in the preamble, and based on the 
findings in the Regulatory Flexibility Determination and the 
International Trade Impact Analysis, the FAA has determined that this 
rule is a significant regulatory action under Executive Order 12866. 
This rule will not have a significant economic impact on a substantial 
number of small entities under the criteria of the Regulatory 
Flexibility Act but is considered significant under DOT Regulatory 
Policies and Procedures (44 FR 11034; February 26, 1979). The 
regulatory evaluation for this rule, including a Regulatory Flexibility 
Determination and International Trade Impact Analysis, has been placed 
in the docket. A copy may be obtained by contacting the person 
identified under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 14 CFR Parts 107 and 108

    Air carriers, Air Transportation, Airlines, Airplanes operator 
security, Aviation safety, Security measures, Transportation, Weapons.

The Rule Amendments

    In consideration of the foregoing, the Federal Aviation 
Administration amends parts 107 and 108 of the Federal Aviation 
Regulations (14 CFR parts 107 and 108) as follows:

PART 107--AIRPORT SECURITY

    1. The authority citation for Part 107 is revised to read as 
follows:

    Authority: 49 U.S.C. 106(g); 5103, 40113, 40119, 44701-44702, 
44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.

    2. In part 107, Sec. 107.1 paragraphs (b)(3) through (b)(5) are 
redesignated as paragraphs (b)(4) through (b)(6), and 

[[Page 51868]]
new paragraph (b)(3) is added to read as follows:


Sec. 107.1  Applicability and Definitions.

* * * * *
    (b) * * *
    (3) Escort means to accompany or supervise an individual who does 
not have unescorted access authority to areas restricted for security 
purposes, as identified in the airport security program, in a manner 
sufficient to take action should the individual engage in activities 
other than those for which the escorted access is granted. The 
responsive actions can be taken by the escort or other authorized 
individual.
* * * * *
    3. Part 107 is amended by adding a new Sec. 107.31 to read as 
follows:


Sec. 107.31  Access Investigation

    (a) On or after January 31, 1996, this section applies to all 
individuals seeking authorization for, or seeking authority to 
authorize others to have, unescorted access privileges to the security 
identification display area (SIDA) that is identified in the airport 
security program as defined by Sec. 107.25.
    (b) Except as provided in paragraph (e) of this section, each 
airport operator must ensure that no individual is granted 
authorization for, or is granted authority to authorize others to have, 
unescorted access to the area identified in paragraph (a) of this 
section unless:
    (1) The individual has satisfactorily undergone a review covering 
the past 10 years of employment history and verification of the 5 years 
preceding the date the access investigation is initiated as provided in 
paragraph (c) of this section; and
    (2) The results of the access investigation do not disclose that 
the individual has been convicted or found not guilty by reason of 
insanity, in any jurisdiction, during the 10 years ending on the date 
of such investigation, of a crime involving any of the following crimes 
enumerated in paragraphs (b)(2)(i) through (xxv) of this section. Where 
specific citations are listed, both the current citation and the 
citation that applied before the statutes are recodified in 1994 are 
listed.
    (i) Forgery of certificates, false making of aircraft, and other 
aircraft registration violations, 49 U.S.C. 46306 [formerly 49 U.S.C. 
App. 1472 (b)];
    (ii) Interference with air navigation, 49 U.S.C. 46308, [formerly 
49 U.S.C. App 1472 (c)];
    (iii) Improper transportation of a hazardous material, 49 U.S.C. 
46312, [formerly 49 U.S.C. App 1472(b)(2)];
    (iv) Aircraft piracy, 49 U.S.C. 46502, [formerly 49 U.S.C. App 
1472(i);
    (v) Interference with flightcrew members or flight attendants, 49 
U.S.C. 46504, [formerly 49 U.S.C. App 1472(j)];
    (vi) Commission of certain crimes aboard aircraft in flight, 49 
U.S.C. 46506, [formerly 49 U.S.C. App 1472(k)];
    (vii) Carrying a weapon or explosive aboard an aircraft, 49 U.S.C. 
46505 [formerly 49 U.S.C. App 1472(l)];
    (viii) Conveying false information and threats, 49 U.S.C. 49 46507 
[formerly 49 U.S.C. App 1472 (m)];
    (ix) Aircraft piracy outside the special aircraft jurisdiction of 
the United States, 49 U.S.C. 46502(b), [formerly 49 U.S.C. App 
1472(n)];
    (x) Lighting violations involving transporting controlled 
substances, 49 U.S.C. 46315, [formerly 49 U.S.C. App 1472(q)];
    (xi) Unlawful entry into an aircraft or airport area that serves 
air carriers or foreign air carriers contrary to established security 
requirements, 49 U.S.C. 46314, [formerly 49 U.S.C. App 1472(r)];
    (xii) Destruction of an aircraft or aircraft facility, 18 U.S.C. 
32;
    (xiii) Murder;
    (xiv) Assault with intent to murder;
    (xv) Espionage;
    (xvi) Sedition;
    (xvii) Kidnapping or hostage taking;
    (xviii) Treason;
    (xix) Rape or aggravated sexual abuse;
    (xx) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon;
    (xxi) Extortion;
    (xxii) Armed robbery;
    (xxiii) Distribution of, or intent to distribute, a controlled 
substance;
    (xxiv) Felony arson; or
    (xxv) Conspiracy or attempt to commit any of the aforementioned 
criminal acts.
    (c) The access investigation must include the following steps:
    (1) The individual must complete an application form that includes:
    (i) The individual's full name, including any aliases or nicknames;
    (ii) The dates, names, phone numbers, and addresses of previous 
employers, with explanations for any gaps in employment of more than 12 
months, during the previous 10-year period;
    (iii) Notification that the individual will be subject to an 
employment history verification and possibly a criminal history records 
check; and
    (iv) Any convictions during the previous 10-year period of the 
crimes listed in paragraph (b)(2) of this section.
    (2) The identity of the individual must be verified through the 
presentation of two forms of identification, one of which must bear the 
individual's photograph.
    (3) The information on the most recent 5 years of employment 
history required under paragraph (c)(1)(ii) of this section must be 
verified in writing, by documentation, by telephone, or in person.
    (4) If one or more of the following conditions exists, the access 
investigation must not be considered complete unless it includes a 
check of the individual's fingerprint-based criminal history record 
maintained by the Federal Bureau of Investigation (FBI). The airport 
operator may request a check of the individual's fingerprint-based 
criminal history record only if one or more of the following conditions 
exists:
    (i) The individual cannot satisfactorily account for a period of 
unemployment of 12 months or more during the previous 10-year period;
    (ii) The individual is unable to support statements made or there 
are significant inconsistencies between information provided on the 
application in response to questions required by paragraph (c)(1)(ii) 
of this section and that obtained through the 5-year verification 
process; or
    (iii) Information becomes available to the airport operator during 
the access investigation indicating a possible conviction for one of 
the disqualifying crimes.
    (d) An airport operator may permit an individual to be under escort 
as defined in Sec. 107.1 in accordance with the airport security 
program to the areas identified in paragraph (a) of this section.
    (e) Notwithstanding the requirements of this section, an airport 
operator may authorize the following individuals to have unescorted 
access to the areas identified in paragraph (a) of this section:
    (1) Employees of the Federal government or a state or local 
government (including law enforcement officers) who, as a condition of 
employment, have been subject to an employment investigation;
    (2) Crew members of foreign air carriers covered by an alternate 
security arrangement in the approved airport operator security program;
    (3) An individual who has been continuously employed in a position 
requiring unescorted access by another airport operator, airport tenant 
or air carrier; and
    (4) An individual who has access authority to the U.S. Customs 
Service security area of the U.S. airport.
    (f) An airport operator will be deemed to be in compliance with its 
obligations under paragraphs (b)(1) and (b)(2) of this section, as 
applicable, when it accepts certification from:

[[Page 51869]]

    (1) An air carrier subject to Sec. 108.33 of this chapter that the 
air carrier has complied with Sec. 108.33 (a)(1) and (a)(2) for its 
employees and contractors; and
    (2) An airport tenant other than a U.S. air carrier that the tenant 
has complied with paragraph (b)(1) of this section for its employees.
    (g) The airport operator must designate the airport security 
coordinator to be responsible for:
    (1) Reviewing and controlling the results of the access 
investigation; and
    (2) Serving as the contact to receive notification from an 
individual applying for unescorted access of his or her intent to seek 
correction of his or her criminal history record with the FBI.
    (h) Prior to commencing the criminal history records check, the 
airport operator must notify the affected individuals.
    (i) The airport operator must collect and process fingerprints in 
the following manner:
    (1) One set of legible and classifiable fingerprints must be 
recorded on fingerprint cards approved by the FBI for this purpose;
    (2) The fingerprints must be obtained from the individual under 
direct observation by the airport operator;
    (3) The identity of the individual must be verified at the time 
fingerprints are obtained. The individual must present two forms of 
identification media, one of which must bear his or her photograph;
    (4) The fingerprint card must be forwarded to Federal Aviation 
Administration, 800 Independence Ave., S.W., Washington, D.C. 20591 
(ATTN: ACO-310, Access Processing); and
    (5) Fees for the processing of the criminal checks are due upon 
application. Airport operators shall submit payment through corporate 
check, cashier's check or money order made payable to ``U.S. FAA,'' at 
the rate of $24.00 for each fingerprint card. Combined payment for 
multiple applications is acceptable.
    (j) In conducting the criminal history records check required by 
this section, the airport operator must ascertain information on 
arrests for the crimes listed in paragraph (b)(2) of this section for 
which no disposition has been recorded to make a determination of the 
outcome of the arrest.
    (k) The airport operator must:
    (1) At the time the fingerprints are taken, notify the individual 
that a copy of any criminal history record received from the FBI will 
be made available if requested in writing.
    (2) Prior to making a final decision to deny authorization for 
unescorted access, advise the individual that the FBI criminal history 
record discloses information that would disqualify him or her from 
unescorted access authorization and provide each affected individual 
with a copy of his or her FBI record if it has been requested. The 
individual may contact the local jurisdiction responsible for the 
information and the FBI to complete or correct the information 
contained in the record before any final access decision is made, 
subject to the following conditions:
    (i) Within 30 days after being advised that the FBI criminal 
history record discloses disqualifying information, the individual must 
notify the airport operator, in writing, of his or her intent to 
correct any information believed to be inaccurate. If no notification 
is received within 30 days, the airport operator may make a final 
access decision.
    (ii) Upon notification by the individual that a record has been 
corrected, the airport operator must obtain a copy of the revised FBI 
record prior to making a final access decision.
    (3) Notify an individual that a final decision has been made to 
grant or deny authorization for unescorted access.
    (l) Any individual authorized to have unescorted access privilege 
to the areas identified in paragraph (a) of this section who is 
subsequently convicted of any of the crimes listed in paragraph (b)(2) 
of this section must report the conviction and surrender the SIDA 
identification medium within 24 hours to the issuer.
    (m) Criminal history record information provided by the FBI must be 
used solely for the purposes of this section, and no person shall 
disseminate the results of a criminal history records check to anyone 
other than:
    (1) The individual to whom the record pertains or that individual's 
authorized representative;
    (2) The airport operator; or
    (3) Others designated by the Administrator.
    (n) The airport must maintain a written record for each individual 
until 180 days after the termination of the individual's authority for 
unescorted access. The records for each individual subject to:
    (1) The access investigation must include: the application, the 
employment verification information obtained by the employer, the names 
of those from whom the employment verification information was 
obtained, the date the contact was made, or certification of same from 
air carriers or airport tenants, and any other information as required 
by the Assistant Administrator for Civil Aviation Security, and
    (2) A criminal history records check must include the results of 
the records check, or a certification by the airport operator or air 
carrier that the check was completed and did not uncover a 
disqualifying conviction. These records must be maintained in a manner 
that protects the confidentiality of the employee, which is acceptable 
to the Assistant Administrator for Civil Aviation Security.

PART 108--AIRPLANE OPERATOR SECURITY

    4. The authority citation for Part 108 is revised to read as 
follows:

    Authority: 49 U.S.C. 106(g), 40101, 40102, 40113, 40119, 44701-
44713, 44901-44915, 44931-44937, 46105.

    5. Part 108 is amended by adding a new Sec. 108.33 to read as 
follows:


Sec. 108.33  Access investigation.

    (a) On or after January 31, 1996 for each employee or contractor 
employee covered under a certification made to an airport operator 
pursuant to Sec. 107.31(f) of this chapter, the certificate holder must 
ensure that:
    (1) The individual has satisfactorily undergone an employment 
history review covering the past 10 years and verification of the 5 
years preceding the date the access investigation is initiated as 
provided in paragraph (b) of this section; and
    (2) The results of the access investigation do not disclose that 
the individual has been convicted or found not guilty by reason of 
insanity, in any jurisdiction, during the 10 years ending on the date 
of such investigation, of a crime involving any of the following crimes 
enumerated in paragraphs (b)(2) (i) through (xxv) of this section. 
Where specific citations are listed, both the current citation and the 
citation that applied before the statutes are recodified in 1994 are 
listed.
    (i) Forgery of certificates, false marking of aircraft, and other 
aircraft registration violation, 49 U.S.C. 46306 [formerly 49 U.S.C. 
App. 1472(b)];
    (ii) Interference with air navigation, 49 U.S.C. 46308, [formerly 
49 U.S.C. App 1472(c)];
    (iii) Improper transportation of a hazardous material, 49 U.S.C. 
46312, [formerly 49 U.S.C. App 1472(b)(2)];
    (iv) Aircraft piracy, 49 U.S.C. 46502, [formerly 49 U.S.C. App 
1472(i)];
    (v) Interference with flightcrew members or flight attendants, 49 
U.S.C. 46504, [formerly 49 U.S.C. App 1472(j)];
    (vi) Commission of certain crimes aboard aircraft in flight, 49 
U.S.C. 

[[Page 51870]]
46506, [formerly 49 U.S.C. App 1472(k)];
    (vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C. 
46505 [formerly 49 U.S.C. App 1472(l)];
    (viii) Conveying false information and threats, 49 U.S.C. 49 46507 
[formerly 49 U.S.C. App 1472(m)];
    (ix) Aircraft piracy outside the special aircraft jurisdiction of 
the United States, 49 U.S.C. 46502(b), [formerly 49 U.S.C. App 
1472(n)];
    (x) Lighting violations in connection with transportation of 
controlled substances, 49 U.S.C. 46315, [formerly 49 U.S.C. App 
1472(q)];
    (xi) Unlawful entry into an aircraft or airport area that serves 
air carriers or foreign air carriers contrary to established security 
requirements, 49 U.S.C. 46314, [formerly 49 U.S.C. App 1472(r)];
    (xii) Destruction of an aircraft or aircraft facility, 18 U.S.C. 
32;
    (xiii) Murder;
    (xiv) Assault with intent to murder;
    (xv) Espionage;
    (xvi) Sedition;
    (xvii) Kidnapping or hostage taking;
    (xviii) Treason;
    (xix) Rape or aggravated sexual abuse;
    (xx) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon;
    (xxi) Extortion;
    (xxii) Armed robbery;
    (xxiii) Distribution of, or intent to distribute, a controlled 
substance;
    (xxiv) Felony arson; or
    (xxv) Conspiracy or attempt to commit any of the aforementioned 
criminal acts.
    (b) The access investigation must include the following steps:
    (1) The individual must complete an application form that includes:
    (i) The individual's full name, including any aliases or nicknames;
    (ii) The dates, names, phone numbers, and addresses of previous 
employers, with explanations for any gaps in employment of more than 12 
months, during the previous 10-year period;
    (iii) Notification that the individual will be subject to an 
employment history verification and possibly a criminal history records 
check; and
    (iv) Any convictions during the previous 10-year period for the 
crimes listed in paragraph (a)(2) of this section.
    (2) The identity of the individual must be verified through the 
presentation of two forms of identification, one of which must bear the 
individual's photograph.
    (3) The information on the most recent 5 years of employment 
history required under paragraph (b)(1)(ii) of this section must be 
verified in writing, by documentation, by telephone, or in person.
    (4) If one or more of the following conditions exists, the access 
investigation must not be considered complete unless it includes a 
check of the individual's fingerprint-based criminal history record 
maintained by the Federal Bureau of Investigation (FBI). The airport 
operator may request a check of the individual's fingerprint-based 
criminal history record only if one or more of the following conditions 
exists:
    (i) The individual cannot satisfactorily account for a period of 
unemployment of 12 months or more during the previous 10-year period;
    (ii) The individual is unable to support statements made or there 
are significant inconsistencies between information provided on the 
application in response to questions required by paragraph (b)(1)(ii) 
of this section and that which is obtained through the 5-year 
verification process; or
    (iii) Information becomes available to the certificate holder 
during the access investigation indicating a possible conviction for 
one of the disqualifying crimes.
    (c) The certificate holder must designate an individual to be 
responsible for:
    (1) Reviewing and controlling the results of the access 
investigation; and
    (2) Serving as the contact to receive notification from an 
individual applying for unescorted access of his or her intent to seek 
correction of his or her criminal history record with the FBI.
    (d) Prior to commencing the criminal history records check, the 
certificate holder must notify the affected individuals.
    (e) The certificate holder must collect and process fingerprints in 
the following manner:
    (1) One set of legible and classifiable fingerprints must be 
recorded on fingerprint cards approved by the FBI;
    (2) The fingerprints must be obtained from the individual under 
direct observation by the certificate holder;
    (3) The identity of the individual must be verified at the time 
fingerprints are obtained. The individual must present two forms of 
identification media, one of which must bear his or her photograph; and
    (4) The fingerprint card must be forwarded to Federal Aviation 
Administration, 800 Independence Ave, S.W., Washington, D.C. 20591 
(ATTN: ACO-310, Access Processing) and
    (5) Fees for the processing of the criminal checks are due upon 
application. Air carriers shall submit payment through corporate check, 
cashier's check or money order made payable to ``U.S. FAA,'' at the 
rate of $24.00 for each fingerprint card. Combined payment for multiple 
applications is acceptable.
    (f) In conducting the criminal history records check required by 
this section, the certificate holder must investigate arrest 
information for the crimes listed in paragraph (a)(2) of this section 
for which no disposition has been recorded to make a determination of 
the outcome of the arrest.
    (g) The certificate holder must:
    (1) At the time the fingerprints are taken, notify the individual 
that a copy of the criminal history record received from the FBI will 
be made available if requested in writing.
    (2) Prior to making a final decision to deny authorization for 
unescorted access, advise the individual that the FBI criminal history 
record discloses information that would disqualify him or her from 
unescorted access authorization and provide each affected individual 
with a copy of his or her FBI record. The individual may contact the 
local jurisdiction responsible for the information and the FBI to 
complete or correct the information contained in the record before any 
final access decision is made, subject to the following conditions:
    (i) Within 30 days after being advised that the criminal history 
record received from the FBI discloses disqualifying information, the 
individual must notify the certificate holder, in writing, of his or 
her intent to correct any information believed to be inaccurate. If no 
notification is received within 30 days, the certificate holder may 
make a final access decision.
    (ii) Upon notification by the individual that the record has been 
corrected, the certificate holder must obtain a copy of the revised 
record from the FBI prior to making a final access decision.
    (3) Notify an individual that a final decision has been made to 
grant or deny authority for unescorted access.
    (h) Any individual authorized to have unescorted access privilege 
to areas identified in Sec. 107.31(a) of this chapter, who is 
subsequently convicted of any of the crimes listed in paragraph (a)(2) 
of this section, must report the conviction and surrender the SIDA 
identification medium within 24 hours to the issuer.
    (i) Criminal history record information provided by the FBI must be 
used solely for the purposes of this section, and no person shall 
disseminate the results of a criminal history records check to anyone 
other than:

[[Page 51871]]

    (1) The individual to whom the record pertains or that individual's 
authorized representative;
    (2) The certificate holder; or
    (3) Others designated by the Administrator.
    (j) The certificate holder must maintain a written record that the 
investigation was conducted for the individual until 180 days after the 
termination of the individual's authority for unescorted access. The 
record for individuals subject to:
    (1) The access investigation must include the application, the 
employment verification information obtained by the employer, the names 
of those from whom the employment verification information was 
obtained, the date the contact was made, and any other information as 
required by the Assistant Administrator for Civil Aviation Security, 
and
    (2) A criminal history records check must include the results of 
the records check or certification by the air carrier that a check was 
completed and did not uncover a disqualifying conviction. These records 
must be maintained in a manner that protects the confidentiality of the 
employee, which is acceptable to the Assistant Administrator for Civil 
Aviation Security.

    Issued in Washington, DC, on September 26, 1995.
David R. Hinson,
Administrator.
[FR Doc. 95-24546 Filed 9-28-95; 3:10 pm]
BILLING CODE 4910-13-M