[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]]

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Part V





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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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.

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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.

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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]
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