[Federal Register Volume 62, Number 51 (Monday, March 17, 1997)]
[Proposed Rules]
[Pages 12724-12727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6531]



[[Page 12723]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR 108



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Certification of Screening Companies; Proposed Rule

  Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / 
Proposed Rules  

[[Page 12724]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 108

[Docket No. 28852; Notice No. 97-3]
RIN 2120-AG31


Certification of Screening Companies

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The FAA seeks public comment on issues relating to the 
certification of screening companies (other than air carriers) by the 
FAA, and other enhancements to the screening by air carriers of 
passengers and property that will be carried in the cabin of an 
aircraft, and of checked baggage. This advance notice responds to a 
recommendation made by the White House Commission on Aviation Safety 
and Security, and to a requirement in the Federal Aviation 
Reauthorization Act of 1996. It is intended to improve the screening of 
passengers, property, and baggage. After reviewing any comments made in 
response to this advance notice, the FAA will issue a notice of 
proposed rulemaking with specific regulatory proposals.

DATES: Comments must be received on or before May 1, 1997.

ADDRESSES: Comments on this notice may be delivered or mailed, in 
triplicate, to: Federal Aviation Administration, Office of the Chief 
Counsel, Attn: Rules Docket (AGC-200), Docket No. 28852, Room 915G, 800 
Independence Avenue, SW., Washington, DC 20591. Comments submitted must 
be marked: ``Docket No. 28852.'' Comments may also be sent 
electronically to the following internet address: 9-nprm-
cmtsfaa.dot.gov. Comments may be examined in Room 915G on weekdays, 
except Federal holidays, between 8:30 am. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT:
Penny J. Anderson, Office of Civil Aviation Security Policy and 
Planning, ACP-100, Federal Aviation Administration, 800 Independence 
Avenue, SW., Washington, DC 20591, telephone (202) 267-5183.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to submit comments by providing such 
written data, views, or arguments as they may desire. Comments relating 
to the environmental, energy, federalism, or economic impact are also 
invited. Substantive comments should be accompanied by cost estimates. 
Comments must identify the regulatory docket or notice number and be 
submitted in triplicate to the Rules Docket address specified above.
    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.
    The Associate Administrator for Civil Aviation Security has 
determined that air carrier security programs required by part 108 
contain sensitive security information. As such, the availability of 
information pertaining to air carrier security programs is governed by 
14 CFR part 191 and 14 CFR 108.7(b) (4) and (5). Air carriers who wish 
to comment on this notice should be cautious not to include information 
contained in the security program in their comments.
    All comments received on or before the closing date will be 
considered by the Administrator before taking action on this proposed 
rulemaking. Late-filed comments will be considered to the extent 
practicable.
    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. 28852.'' The postcard will be date 
stamped and mailed to the commenter.

Availability of ANPRMs

    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the FAA regulations section 
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339), the Federal Register's electronic bulletin board service 
(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory 
Committee Bulletin Board service (telephone: 202-267-5948).
    Internet users may reach the FAA's web page at http://www.faa.gov 
or the Federal Register's webpage at http://www.access.gpo.gov/su__docs 
for access to recently published rulemaking documents.
    Any person may obtain a copy of this ANPRM by submitting a request 
to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 
800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 
267-9680. Communications must identify the notice number or docket 
number of this ANPRM.
    Persons interesting in being placed on the mailing list for future 
ANPRMs or NPRMs should request from the above office a copy of Advisory 
Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, 
that describes the application procedure.

Background

    Following the tragic crash of TWA 800 on July 17, 1996, the 
President created the White House Commission on Aviation Safety and 
Security (the Commission). The Commission issued an initial Report on 
September 9, 1996, with 20 specific recommendations for improving 
security, one of which was the development of uniform performance 
standards for the selection, training, certification, and 
recertification of screening companies and their employees.
    On October 9, 1996, the President signed the Federal Aviation 
Reauthorization Act of 1996, Pub.L. 104-264 (the Act). Section 302 
provides:

    The Administrator of the Federal Aviation Administration is 
directed to certify companies providing security screening and to 
improve the training and testing of security screeners through 
development of uniform performance standards for providing security 
screening services.

    The rulemaking initiated by this advance notice is intended to 
provide an initial response to these mandates. It requests comments on 
improving the screening system and on the certification of screening 
companies.

Rulemaking Process

    This ANPRM does not propose specific regulatory changes. Rather, it 
requests comments and suggestions as to what regulatory changes should 
be made to carry out the Act and the Commission's recommendations. 
After review of all of the comments submitted in response to his ANPRM 
the FAA will issue a notice of proposed rulemaking (NPRM), proposing 
specific regulations. Interested persons will have the opportunity to 
comment on those proposed changes before a final rule is adopted.

History and Current Requirements

    Title 49, United Stated Code, section 44901, requires the FAA to 
prescribe regulations requiring air carriers to screen all passengers 
and property that will be carried in a cabin of an aircraft in air 
transportation or intrastate air transportation. This screening must be 
done before the aircraft is boarded, using weapon-detecting facilities 
or

[[Page 12725]]

procedures used or operated by an employee or agent of an air carrier, 
intrastate air carrier, or foreign air carrier.
    Part 108 of Title 14, Code of Federal Regulations, contains rules 
in Secs. 108.9, 108.17, and 108.20 for the conduct of screening 
operations. These rules, which are available to the general public, 
provide basic standards for the screeners, equipment, and procedures to 
be used. In addition, each air carrier that is required to conduct 
screening has a non-public security program (issued under Secs. 108.5 
and 108.7) that contains detailed requirements for screening. 
Essentially all approved air carrier security programs are actually the 
Air Carrier Standard Security Program (ACSSP). The ACSSP provides 
identical measures for all air carriers to use in most situations. 
Individual air carriers may request alternate procedures in specific 
situations to allow more efficient operations, where the required level 
of security can be maintained.
    There are several means by which an air carrier may conduct 
screening. It may use its own employees. It may contract with another 
company to conduct the screening in accordance with the air carrier's 
security program. It may contract with another air carrier to conduct 
screening. In each case, the air carrier is required to provide 
oversight to ensure that all requirements are met. For example, 
Sec. 108.29 requires that the air carrier's ground security coordinator 
(GSC) review security-related functions and initiate corrective action 
for noncompliance, and Sec. 108.31(d) requires that the GSC conduct an 
annual evaluation of each person assigned screening duties.
    In addition to screening persons and property to be carried in the 
cabin of an aircraft, Sec. 108.9(a) requires air carriers to prevent or 
deter the carriage of any explosive or incendiary in checked baggage. 
The ACSSP contains various measures to carry out this duty, including 
screening of checked baggage.
    The term ``screening location'' refers to any site at which the 
screening of passengers, property, or baggage is conducted. A 
``screening checkpoint'' is a type of screening location. Specifically, 
a ``screening checkpoint'' refers to a screening location at which the 
screening of passengers and property that will be carried in the cabin 
of an aircraft is conducted. Another example of a specific type of 
screening location would be a site at which the screening of checked 
baggage is conducted.
    Some screening locations are used by only one air carrier. However, 
most locations are used by more than one air carrier (often referred to 
as ``joint-use checkpoints''), resulting in more than one air carrier 
having the regulatory responsibility to oversee the operation of the 
location. The use of the ACSSP ensures that all air carriers using the 
location are held to the same standards.
    Foreign air carriers that operate in the United States are required 
to have a security program and carry out security procedures under 14 
CFR 129.25, 129.26, and 129.27. It is anticipated that foreign air 
carriers will be subject to the same provisions for the use of 
certificated screening companies as U.S. air carriers, and comment is 
specifically invited on this.

General Discussion and Request for Comments

    There are a number of issues that arise in connection with 
certification of screening companies. The FAA requests comments and 
suggestions on all issues related to the certification of screening 
companies and the improvement of screening. The FAA will consider all 
comments and suggestions. The following are issues of particular 
interest:

1. Oversight by Air Carriers

    There has been no change to the requirement in 49 U.S.C. 44901(a) 
that screening of passengers and property that will be carried in the 
cabin of an aircraft in air transportation or intrastate air 
transportation be conducted by an employee or agent of an air carrier. 
Further, the FAA does not anticipate any change in the air carrier's 
responsibility for screening of checked baggage. Accordingly, 
certificated screening companies must be agents of air carriers, and 
air carriers will remain ultimately responsible for the proper 
screening of passengers, property, and baggage. However, as certificate 
holders, the screening companies will be responsible for carrying out 
their regulatory duties to properly screen passengers, property, and 
baggage. In the case of a failure to properly screen, both regulated 
parties, i.e., the air carriers and the certificated screening company, 
potentially bear responsibility.
    This gives rise to questions about how air carriers should select a 
screening company, and then oversee the operations of that screening 
company, and the extent to which screening companies should be held 
directly responsible for the operation of screening locations. The fact 
that screening companies will have certificates will not relieve air 
carriers of responsibility for screening. These questions are similar 
to others that have been dealt with regarding air carrier oversight of 
contractors and employees. For example, the FAA recently has emphasized 
to air carriers the need for stronger oversight of certificated repair 
stations performing maintenance on their aircraft. As another example, 
the FAA currently requires pilots to have certificates, yet under Title 
V of the Act, the air carrier must obtain extensive information on 
pilots before they are hired.
    The FAA anticipates that details of selecting a screening company, 
and then overseeing the operations of that screening company, will be 
placed in the security programs. However, the FAA requests comments as 
to the general rules that should appear in part 108 regarding what 
guidelines an air carrier should follow with respect to selection and 
oversight of a screening company. For example, what information should 
an air carrier collect prior to contracting with a screening company. 
Of what should air carrier oversight of a screening company consist? 
Should it include periodic inspections? Training audits? Records audit? 
Screening surveillance? Unannounced, anonymous testing? Other 
surveillance?
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of carrying out 
oversight responsibilities.

2. Joint-Use Screening Locations

    The FAA is evaluating how best to address common, or joint-use 
screening locations. Currently, joint-use screening locations are 
handled in a number of ways. Some locations have a managing air carrier 
that has accepted responsibility for administrative functions relating 
to the location, and for responsibility in the event of certain 
security violations. At other checkpoints the responsibility for these 
events may be spread among many air carriers.
    The FAA requests comments on the best method of structuring air 
carrier selection of a screening company for joint use screening 
locations, and oversight of that screening company's activities. Should 
there be an agreement between all affected air carriers? What form 
should this agreement take? How should it be documented? How much 
involvement should air carriers other than the managing air carrier 
have regarding the day to day and long-term activities of the location?

3. Screening Security Program

    As discussed above, there currently exist requirements for the 
screening of passengers, property, and baggage to be carried aboard air 
carrier aircraft, in part

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108 and in the ACSSP. The ACSSP provides a uniform standard for 
screening, which assists in having a coordinated effort when more than 
one air carrier is using the same screening location. Further, the 
ACSSP is made available only to those persons with an operational need 
to know, not to the general public, in order to avoid unauthorized 
persons from obtaining information that could be used to attempt to 
defeat the security system. It is evident that large portions of the 
requirements for screening by screening companies must be in a non-
public security program, just as they are for air carriers.
    The FAA is considering establishing by regulation a uniform 
security program for use by all air carriers and screening companies. 
This screening security program would incorporate the screening 
standards currently provided in the ACSSP. This screening security 
program could be incorporated as part of the ACSSP (as it is now) or be 
developed as a separate security program for screening companies. In 
this case, all air carriers and certificated screening companies would 
be subject to the same standards for conducting screening. Screening 
companies would be made directly responsible for protecting the 
security program from access by unauthorized persons, similar to the 
requirement on air carriers under Sec. 108.7(b) (4) and (5). There 
would be no confusion as to which air carrier's security program a 
screening company would carry out at a given location.
    The FAA requests comments on this approach, and requests 
suggestions as to any other means that might be used to ensure that 
uniform standards are used to perform screening, and to ensure that the 
standards are protected from unauthorized use.
    It has long been recognized that screener performance standards 
must be measurable. Although the FAA intends to begin measuring 
screener performance using the Threat Image Projection System (TIPS), 
it remains open to suggestions for other methods of evaluating 
performance.
    In addition to substantive comments or suggestions relating to this 
issue, the FAA also requests estimates of the costs of implementing and 
carrying out a uniform security program.

4. Screener Training

    The FAA has been working on ways to improve screener training, such 
as computer-based instruction. We anticipate that the details of most 
such changes will, of necessity, be placed in the ACSSP. The FAA is 
also considering a requirement to incorporate into each security 
program the specific curriculum to be used to train screeners. This 
would require the approval of the training curriculum by the FAA.
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests any cost information that would assist it in 
evaluating the cost impact of the commenter's suggested changes to 
training methods or curriculum.

5. Qualifications and Operations of Screening Companies

    The FAA is considering what qualifications companies should be 
required to demonstrate before the FAA issues a screening company 
certificate. The FAA requests comments on what should be the minimal 
showings to qualify for a screening company certificate.
Local and National Qualifications
    A screening company may carry out its functions at many different 
locations throughout the country. Each location may have different 
types of equipment in place to conduct screening and to train 
screeners. The FAA requests comments on whether screening companies 
should be qualified on a national basis, or should companies be 
required to make specific showings of qualification for each location?
Aviation Screening Experience
    The screening of passengers, property, and baggage at airports is a 
unique task. While there are some similarities to security functions 
performed in other settings (such as security at sports arenas and 
other public events), there are many differences. The FAA is 
considering whether a screening company should be required to have 
management personnel with specialized aviation experience or training, 
similar to that required for various air carrier management personnel 
under Secs. 119.65 and 119.67.
Screening Equipment
    Under current requirements, the equipment used for screening (such 
as x-ray machines and metal detectors) must be approved by or 
acceptable to the FAA. Further, the equipment must be checked or 
calibrated on a specified interval, and taken out of service if it 
fails to perform as required. Currently, most equipment is owned by air 
carriers, and that seems likely to remain true in the future. The FAA 
requests comments on the responsibility the air carriers and the 
screening companies each should have for both the equipment initially 
obtained to use at each location and the periodic checking and testing 
of the equipment, as well as its continued use after failure.
Training Equipment
    Currently training equipment generally is owned by air carriers, 
and there may be different training programs in use by different air 
carriers. However, certificated screening companies will be responsible 
for ensuring that their screeners are properly trained. This raises the 
question whether each screening company should use whatever program is 
in place at each airport, or should be responsible for conducting its 
own training using its own equipment. The use of different training 
programs at different airports by the same screening company may be 
hard to manage, and make it difficult to determine to what standard the 
screening company must comply. The FAA requests comments on how 
training of screeners should be accomplished. For example, should 
training programs be approved for each site rather than for the 
screening company as a whole? Also, how should training for use of new 
equipment be addressed?
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of meeting any of the 
qualifications or operational requirements described above.

6. Screeners

    There is a concern that screeners should be encouraged to have a 
stronger sense of professionalism. There are a number of potential ways 
to accomplish this.
    It has been suggested that it should be easier for screeners to 
switch employment from one screening company to another (screener 
mobility). Currently, when a screener wishes to switch companies, or 
one company stops operating a screening location for an air carrier and 
is replaced by another screening company, the first company does not 
necessarily transfer the training records to the new company. The 
screeners then must completely requalify for the new company. The FAA 
is considering whether there should be a means for certain records to 
be transferred, at the screener's request, to ease the transition.
    Mobility of documentation also raises issues in regard to the 
accuracy of the documents, screener rights relating to corrections to 
the documents, and screening company liability in the event an 
inaccurate document is transferred.
    Another means of encouraging professionalism is to provide a 
special recognition of the screener's successful completion of 
training.

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    The FAA requests comments on ways that the regulations could 
encourage a stronger sense of professionalism in screeners.
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of increasing the 
professionalism of the screener position through implementation of the 
measures described above and any recommendation made by the commenter.

7. Screening by Air Carriers

    Some air carriers conduct screening with their own employees. They 
may do so at joint-use locations, and therefore conduct screening on 
behalf of other air carriers. The FAA is considering whether air 
carriers that conduct screening should be subject to the same standards 
as certificated screening companies. These standards would include 
those issues raised in this document that identify possible screening 
company requirements, such as the qualification of management and 
screener training. They might also include oversight by other air 
carriers for which they screen.
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of imposing the same 
requirements on air carriers as those that will be imposed upon 
independent screening companies.

8. New Screening Companies

    There are about 70 screening companies (other than air carriers) 
currently performing passenger, property, and baggage screening at U.S. 
airports. We assume other companies will be formed in the future. These 
new companies may have no background or experience in aviation security 
screening. These screening companies will be required to have a 
certificate prior to beginning screening. The FAA invites coments on 
how to ensure the qualifications of a company that has no aviation 
screening experience before it begins aviation screening.
    The FAA is considering whether there should be a period of 
provisional certification for new screening companies that have not 
demonstrated an ability to screen in the aviation environment. This may 
include additional measures and/or constraints upon such new companies 
to ensure competence of the screening company. During this provisional 
period the FAA and the air carrier could provide more monitoring of 
training, and more testing and surveillance than would normally be 
provided for established companies. The screening company might also be 
constrained from beginning screening activities at a new screening 
location unless advance approval is given by the FAA. The provisional 
certificate could be limited to a specific period, after which a 
successful screening company may apply for a standard screening company 
certificate and be expected to meet only those provisions required of 
experienced screening companies.
    The FAA requests comments as to what measures or constraints, if 
any, should be placed upon a new screening company. If a provisional 
certificate were to be issued, for what period of time should it remian 
in effect? What additional oversight requirements, if any, should be 
placed upon an air carrier contracting with a new screening company?
    In additon to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of provisional 
certification or other possible constraints upon new screening 
companies.

9. Checkpoint Operational Configuration Deficiencies

    The FAA has observed that difficulties with the performance of 
screening at checkpoints often are caused by a less than optimal 
physical configuration of the checkpoint. For instance, a screener may 
have problems reading the x-ray screen because there is a glare on the 
screen. The FAA is considering clarifying the responsibility of the air 
carriers and the screening companies to make sure that their 
checkpoints are configured for effective screening. In some cases an 
airport operator would have an interest in the correction of 
operational checkpoint configuration deficiencies. The FAA requests 
comments on how best to address operational checkpoint deficiencies.
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of correcting 
operational checkpoint deficiencies.

10. Foreign Air Carriers

    The FAA anticipates that this rule will also apply to foreign air 
carriers required to screen under a security program required by 14 CFR 
part 129. The FAA requests comments on the impact on foreign air 
carriers operating in the United States.
    In addition to substantive comments or suggestions relating to this 
issue, the FAA requests estimates of the costs of imposing the same 
requirements on foreign air carriers.

    Issued in Washington, DC, on March 11, 1997.
Quinten T. Johnson,
Acting Director, Office of Civil Aviation Security Policy and Planning.
[FR Doc. 97-6531 Filed 3-12-97; 8:45 am]
BILLING CODE 4910-13-M