[Federal Register Volume 61, Number 233 (Tuesday, December 3, 1996)]
[Rules and Regulations]
[Pages 64242-64244]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30776]
[[Page 64241]]
_______________________________________________________________________
Part V
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 107 and 108
Falsification of Security Records; Interim Rule
Federal Register / Vol. 61, No. 233 / Tuesday, December 3, 1996 /
Rules and Regulations
[[Page 64242]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 107 and 108
[Docket No. 28745; Amendment Nos. 107-9 and 108-14]
RIN 2120-AG27
Falsification of Security Records
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The FAA is adopting rules that prohibit fraudulent or
intentionally false statements in certain security records. This action
responds to recent events indicating that persons may be making such
statements in security records. This action is intended to provide a
means for the FAA to take legal enforcement action against persons who
make such statements, and thereby enhance the security of civil
aviation.
DATES: Effective date November 27, 1996. Comments must be received by
January 23, 1997.
ADDRESSES: Comments on this rule should be submitted in triplicate to:
Federal Aviation Administration, Office of the Chief Counsel, Attn:
Rules Docket (AGC-200), Room 915-G, Docket No. 28745, 800 Independence
Ave., SW, Washington, DC 20591. Comments must be marked Docket No.
28745. Comments also may be submitted electronically to the following
Internet address: [email protected]. Comments may be examined in
room 915G weekdays between 8:30 a.m. and 5 p.m. except on Federal
holidays.
FOR FURTHER INFORMATION CONTACT: Robert Cammaroto and Linda C.
Valencia, Office of Civil Aviation Security Policy and Planning, Civil
Aviation Security Division, ACP-100, Federal Aviation Administration,
800 Independence Avenue, SW., Washington, DC 20591, telephone (202)
267-3413.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in this rulemaking by
submitting such written data, views, or arguments as they may desire.
Comments relating to the environmental, energy, federalism, or economic
impact that might result from this rule are also invited. Substantive
comments should be accompanied by cost estimates. Comments must
identify the regulatory docket and be submitted in triplicate to the
Rules Docket address specified above.
Except as noted below, all comments received, as well as a report
summarizing each substantive public contact with FAA personnel on this
rulemaking, will be filed in the docket. The docket is available for
public inspection before and after the comment closing date.
All comments received on or before the closing date will be
considered by the Administrator. Late-filed comments will be considered
to the extent practicable. The rule may be changed in light of the
comments received.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this notice must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. 28745.'' The postcard will be date
stamped and mailed to the commenter.
Background
It has recently come to the FAA's attention that persons may be
submitting fraudulent or intentionally false statements in records used
to obtain identification media from an airport operator that provides
unescorted access to security identification display areas (SIDA's) on
airports, and in other required records.
Part 107 of Title 14, Code of Federal Regulations, sets forth the
requirements for airport security. Identification media must be worn at
all times in the SIDA by all persons with unescorted access authority.
The SIDA includes the most security-sensitive portions of the airport,
including the areas immediately next to the terminals in which air
carrier aircraft board and off-load passengers.
Section 107.31 requires that an access investigation be conducted
for each person applying for unescorted access privileges to the SIDA.
This investigation involves the completion of an application by the
individual that requires various information, including a ten-year
employment history. The most recent five years of employment must be
verified. In specified circumstances the applicant's fingerprint must
be obtained and an FBI criminal history records check must be
conducted. The airport may not grant unescorted access to the SIDA for
any person until the access investigation is completed and must deny
unescorted access to any person who has one or more of the specified
criminal convictions within the previous ten years.
Under Sec. 107.31(f) the airport operator is deemed in compliance
with Sec. 107.31 if it accepts a certification from an air carrier that
the air carrier has complied with 14 CFR Sec. 108.33. (14 CFR Part 108
contains the security requirements for air carriers.) Section 108.33
provides for the same application, verification, and criminal records
check process to be carried out by the air carrier. Air carriers are
directly regulated by the FAA, and the FAA monitors their compliance
with part 108.
Section 107.31(f) also provides that the airport operator is deemed
in compliance if it accepts certification from an airport tenant, other
than an air carrier, that the tenant has complied with
Sec. 107.31(b)(1) for its employees, unless a criminal history records
check is required. Tenants are not directly regulated by the FAA, and
the FAA has relied upon good faith adherence to the access
investigation process to ensure that the appropriate security measures
are carried out.
The FAA has recently determined that some tenants have submitted
certifications to airport operators without having performed the
required verification of the applicant's employment history. This leads
the airport operator to issue identification media that permit
unescorted access to the SIDA when the tenant has not verified prior
employment or established that the applicants have no prohibited
criminal convictions.
Further, the FAA has determined that there may be some fraudulent
or intentionally false records of required screener training. These
records are essential to the FAA's and the air carriers' monitoring of
screener training. This training is essential to the effective
detection of weapons and explosive devices to prevent their being
placed aboard aircraft. Training and screening may be conducted by air
carrier employees, or by a contractor of an air carrier.
Good Cause Justification for Immediate Adoption and No Notice
The FAA finds that good cause exists for issuing this final rule
without prior notice and opportunity for comment. Prior notice is
impracticable, unnecessary, and contrary to public interest.
It is impracticable to provide prior notice because the FAA would
be prevented from adequately and immediately protecting persons
traveling in air transportation through prohibiting the submission of
fraudulent or intentionally false records for persons who directly
carry out required security measures. Prior notice is unnecessary
because these rules prohibit practices--fraud and intentional
falsification--that
[[Page 64243]]
long have been understood by the public and the industry to be
improper, and that may constitute criminal violations. No one has a
right or justification to intentionally falsify records required by
Federal regulation.
Prior notice would be contrary to public interest in that it would
delay the FAA's ability to take action against those who make
fraudulent or intentionally false statements in security records.
Failure of the FAA to act now may cause a continuing security risk. By
acting immediately, the FAA is providing additional deterrence to those
who may falsify security records. It is in the public interest to make
clear that such activities will not be tolerated and may be met with
legal enforcement action.
For the same reasons, these rules are effective immediately. It
must be clear that no intentional falsification of security records
will be tolerated and the additional security afforded the traveling
public should not be delayed.
Discussion of the Rules
The FDA is adopting new Secs. 107.2 and 108.4. These rules
specifically prohibit a person from making any fraudulent or
intentionally false statement or entry on any security program, record,
application, report, access or identification medium, or any other
document that is kept, made, or used to show compliance under parts 107
or 108.
It is important that all such records be accurate. They are used to
ensure that all required security measures have been carried out.
Fraudulent or intentionally false records may conceal a significant
security risk that should be addressed immediately.
Fraud or intentional falsification of required records may also be
a violation of certain criminal statutes. These rules provide a civil
enforcement remedy where appropriate.
These rules are modeled on similar provisions elsewhere in 14 CFR,
such as Secs. 21.2, 43.12, 61.59, and 65.20. These provisions have long
been in the regulations and have worked well. An intentionally false
statement consists of (1) a false representation, (2) in reference to a
material fact, (3) made with knowledge of its falsity. A fraudulent
statement consists of these three elements, plus (4) it was made with
the intent to deceive, and (5) action was taken in reliance upon the
representation. See, Hart v. McLucus, 535 F.2d 516, 519 (9th Cir.
1976). There have been many cases under the existing rules interpreting
these terms, which will assist in understanding these rules.
These rules apply to all ``persons.'' Under 14 CFR Sec. 1.1,
``person'' means an individual, firm, partnership, corporation,
company, association, joint-stock association, or governmental entity.
Thus, a company that is a tenant on an airport, or a company that
contracts with an air carrier to provide screening services, is a
person within the meaning of the rule. In the case of an intentionally
false certification made by a tenant, potentially both the tenant and
the individual making the certification could be held in violation of
Sec. 107.2.
Related Activity
The FAA is investigating the alleged incidents of false records,
and in conducting audits to determine the extent of the problem. The
FAA intends to raise this issue with airport consortia. The FAA is
considering what additional regulatory action may be advisable in the
future.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), there are no requirements for information collection
associated with this final rule.
International Compatibility
The FAA has reviewed corresponding International Civil Aviation
Organization international standards and recommended practices and
Joint Aviation Airworthiness Authorities requirements and has
identified no differences in these amendments and the foreign
regulations.
Regulatory Evaluation
Executive Order 12866 directs that each Federal agency shall
propose or adopt a regulation only upon a reasoned determination that
the benefits of the intended regulation justify its costs. In
conducting the evaluation reflected in this document, the FAA has
determined that this rule is not ``a significant regulatory action'' as
defined in the Executive Order and the Department of Transportation
Regulatory Policies and Procedures. The FAA invites the public to
provide comments, and supporting data, on these determinations. All
comments received will be considered.
Air carriers and airports have security programs which are intended
to protect the public from the threat of aircraft hijacking and other
criminal activities affecting air transportation. The FAA proposes to
strengthen the rules against the falsification of security documents.
Falsifying the information on such documents can have a detrimental
effect on the ability to thwart terrorist and other criminal
activities. The final rule will amend parts 107 and 108 to prevent such
activities.
The FAA has not identified any costs with this proposal. The
proposal does not obligate a person to take an action that is not
otherwise required. Enforcement actions may be taken by the FAA against
persons who violate the rules, at a cost to the agency, but the number
of cases cannot be determined. In addition, because this final rule
will not be included in the airport or the air carrier security
programs, affected entities will not incur any costs to implement these
proposed requirements.
The primary benefit of this rule is to deter falsification of
important security records. It also provides the FAA with a compliance
tool in the event that a person intentionally falsifies a security
record in violation of the rule. The FAA cannot quantify the security
benefits of this rule, but believes that this action will significantly
enhance civil aviation security by increasing the reliability and
integrity of security records.
Much of the effectiveness of the air carriers' and airports'
security programs depends on strictly limiting access to the SIDA.
Sophisticated criminal elements are actively seeking ways to gain
access to the SIDA, and it is important that the FAA, air carriers, and
airports guard against such terrorist activities. The consequences of
not protecting such access can be catastrophic. Between 1982 and 1991,
terrorist bombings of U.S. air carriers have resulted in 275 deaths and
24 injuries, while hijackings incidents have resulted in 24 deaths and
127 injuries.
Given the lack of cost and given the potential benefits of avoided
fatalities and injuries, this evaluation finds this final rule cost
beneficial.
Regulatory Flexibility Determination
The Regulatory Flexibility Act (RFA) of 1980 was enacted by
Congress to ensure that small entities are not unnecessarily or
disproportionately burdened by Government regulations. The RFA requires
a Regulatory Flexibility Analysis if a rule has a significant economic
impact on a substantial number of small business entities. FAA Order
2100.14A, Regulatory Flexibility Criteria and Guidance, established
threshold costs and small entity size standards for complying with RFA
requirements. As was discussed above, there is no cost associated with
this rule. Therefore, the FAA certifies that the rule does not have a
significant economic impact on a substantial number of small entities.
[[Page 64244]]
International Trade Impact Analysis
In accordance with the Office of Management and Budget memorandum
dated March 1983, federal agencies engaged in rulemaking activities are
required to assess the effects of regulatory changes on international
trade. The FAA finds that this final rule will not have an adverse
impact on trade opportunities for either U.S. firms doing business
overseas or foreign firms doing business in the United States. This
finding is based on the fact that this rule will impose no costs on
both domestic and foreign air carriers, so neither will have a trade
advantage over the other.
Federalism Implications
The regulations herein will not have substantial direct effects on
the states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 12612, it is determined that this rule will not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
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
regulation is not a ``significant regulatory action'' under Executive
Order 12866. In addition, the FAA certifies that this rule will not
have a significant economic impact, positive or negative, on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act. This rule is not considered significant
under Order DOT 2100.5, Policies and Procedures for Simplification,
Analysis, and Review of Regulations.
List of Subjects
14 CFR Part 107
Airports, Arms and munitions, Law enforcement officers, Reporting
and recordkeeping requirements, Security measures.
14 CFR Part 108
Air carriers, Aircraft, Airmen, Airports, Arms and munitions,
Explosives, Law enforcement officers, Reporting and recordkeeping
requirements, Security measures, X-rays.
The Amendment
In consideration of the foregoing, the Federal Aviation
Administration amends parts 107 and 108 of title 14, Code of Federal
Regulations (14 CFR parts 107 and 108) as follows:
PART 107--AIRPORT SECURITY
1. The authority citation for part 107 continues 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. Section 107.1 is amended by removing the ``and'' after paragraph
(a)(2), removing the period and adding in its place ``; and'' in
paragraph (a)(3), and adding paragraph (a)(4) to read as follows:
Sec. 107.1 Applicability and definitions.
(a) * * *
(4) Each person who files an application or makes entries into any
record or report that is kept, made, or used to show compliance under
this part, or to exercise any privileges under this part.
* * * * *
3. Section 107.2 is added to read as follows:
Sec. 107.2 Falsification.
No person may make, or cause to be made, any of the following:
(a) Any fraudulent or intentionally false statement in any
application for any security program, access medium, or identification
medium, or any amendment thereto, under this part.
(b) Any fraudulent or intentionally false entry in any record or
report that is kept, made, or used to show compliance with this part,
or exercise any privileges under this part.
(c) Any reproduction or alteration, for fraudulent purpose, of any
report, record, security program, access medium, or identification
medium issued under this part.
PART 108--AIRPLANE OPERATOR SECURITY
4. The authority citation for part 108 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
5. Section 108.1 is amended by removing the ``and'' after paragraph
(a)(2), removing the period and adding in its place a semi-colon in
paragraph (a)(3), removing the period and adding in its place a ``;
and'' in paragraph (a)(4), and adding paragraph (a)(5) to read as
follows:
Sec. 108.1 Applicability.
(a) * * *
(5) Each person who files an application or makes entries into any
record or report that is kept, made or used to show compliance under
this part, or to exercise any privileges under this part.
* * * * *
6. Section 108.4 is added to read as follows:
Sec. 108.4 Falsification.
No person may make, or cause to be made, any of the following:
(a) Any fraudulent or intentionally false statement in any
application for any security program, access medium, or identification
medium, or any amendment thereto, under this part.
(b) Any fraudulent or intentionally false entry in any record or
report that is kept, made, or used to show compliance with this part,
or to exercise any privileges under this part.
(c) Any reproduction or alteration, for fraudulent purpose, of any
report, record, security program, access medium, or identification
medium issued under this part.
Issued in Washington, DC, on November 27, 1996.
Linda Hall Daschle,
Acting Administrator.
[FR Doc. 96-30776 Filed 11-27-96; 3:23 pm]
BILLING CODE 4910-13-M