[Federal Register Volume 63, Number 185 (Thursday, September 24, 1998)]
[Rules and Regulations]
[Pages 51204-51222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25210]



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Part IV





Department of Transportation





_______________________________________________________________________



Federal Aviation Administration



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14 CFR Parts 107 and 108



Employment History, Verification and Criminal History Records Check; 
Final Rule

  Federal Register / Vol. 63, No. 185 / Thursday, September 24, 1998 / 
Rules and Regulations  

[[Page 51204]]



DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 107 and 108

[Docket No. 28859; Amendment No. 107-12, 108-17]
RIN 2120-AG32


Employment History, Verification and Criminal History Records 
Check

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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

SUMMARY: The FAA amends the regulations that require an access 
investigation, including a fingerprint-based criminal record check in 
certain cases, for unescorted access privileges to security areas at 
airports. This final rule extends the requirement for an access 
investigation (which is renamed ``employment history investigation'') 
to persons who perform checkpoint screening functions at airports and 
their supervisors. The final rule also requires airport operators and 
air carriers to audit employment history investigations. This final 
rule is in response to the Federal Aviation Reauthorization Act of 1996 
and seeks to improve the security of the airport environment.

EFFECTIVE DATE: November 23, 1998.

FOR FURTHER INFORMATION CONTACT:
Linda Valencia, Office of Civil Aviation Security Policy and Planning, 
Civil Aviation Security Division, ACP-100, Federal Aviation 
Administration, 800 Independence Avenue, SW., Washington, DC 20591, 
telephone (202) 267-3413.

SUPPLEMENTARY INFORMATION: 

Availability of Final Rule

    This document may be downloaded from the FAA regulations section of 
the FedWorld electronic bulletin board (telephone: 703-321-3339), the 
Federal Register's electronic bulletin board (telephone: 202-512-1661), 
or the FAA's Aviation Rulemaking Advisory Committee Bulletin Board 
(telephone: 800-322-2722 or 202-267-5948).
    Internet users may access the FAA's web page at http://www.faa.gov 
or the Federal Register's web page at http://www/access.gpo.gov/
su__docs to download recently published rulemaking documents.
    Any person may obtain a copy of this final rule by submitting a 
request to the Federal Aviation Administration, Office of Rulemaking, 
ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by 
calling (202) 267-9677. Communications must reference the amendment 
number of this final rule.
    Persons interested in being placed on the mailing list for future 
rules should request a copy of Advisory Circular (AC) No. 11-2A, Notice 
of Proposed Rulemaking Distribution System, which describes the 
application procedure.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires the FAA to report inquiries from small entities 
concerning information on, and advice about, compliance with statutes 
and regulations within the FAA's jurisdiction, including interpretation 
and application of the law to specific sets of facts supplied by a 
small entity.
    The FAA's definitions of small entities may be accessed through the 
FAA's web page http://www.faa.gov/avr/arm/sbrefa.htm, by contacting a 
local FAA official, or by contacting the FAA's Small Entity Contact 
listed below.
    If you are a small entity and have a question, contact your local 
FAA official. If you do not know how to contact your local FAA 
official, you may contact Charlene Brown, Program Analyst Staff, Office 
of Rulemaking, ARM-27, Federal Aviation Administration, 800 
Independence Avenue SW., Washington, DC 20591, 1-888-551-1594. Internet 
users can find additional information on SBREFA in the ``Quick Jump'' 
section of the FAA's web page at http://www.faa.gov and may send 
electronic inquiries to the following Internet address: 9-AWA-
[email protected].

Background

History

    Title 14 of the Code of Federal Regulations (CFR) part 107 
prescribes security requirements of airport operators concerning access 
control, law enforcement support, and the submission of airport 
security programs for FAA approval. Title 14 CFR part 108 prescribes 
security rules for U.S. carriers who must adopt and carry out an FAA 
approved security program. As used in this document, the term ``air 
carrier'' refers to U.S. air carriers conducting passenger-carrying 
operations.
    On October 3, 1995, the FAA issued a final rule on Unescorted 
Access Privilege (60 FR 51854). The FAA issued the rule primarily in 
response to the Aviation Security Improvement Act of 1990. The rule 
requires a 10-year employment history investigation for certain 
employees, including, if needed, a Federal Bureau of Investigation 
(FBI) fingerprint-based criminal records check. These employment checks 
must be performed for individuals who are granted unescorted access to 
a security identification display area (SIDA) and individuals who 
authorize others to have unescorted access. (See 14 CFR 107.25.) In the 
preamble to the Unescorted Access Privilege final rule the FAA stated 
that it would continue to evaluate the civil aviation security system 
to determine if further changes were warranted.
    The bombings of the Federal Building in Oklahoma City and the World 
Trade Center Building in New York, along with information provided by 
the U.S. intelligence community after those incidents, has indicated 
the terrorist activities are no longer limited to areas outside of the 
United States. Intelligence information indicates that terrorists are 
in the United States, working alone, working in ad-hoc groups, or 
serving as members of established terrorist groups. In light of the 
increase in terrorism in this country, the White House Commission on 
Aviation Safety and Security (the Commission) identified a further need 
to enhance security at our nation's airports. In its final report, 
(``Final Report to President Clinton--White House Commission on 
Aviation Safety and Security,'' February 12, 1997), the Commission 
recommended that ``Given the risks associated with the potential 
introduction of explosives into these [airport] areas, * * * screeners 
and employees with access to secure areas [should] be subject to 
criminal background checks and FBI fingerprint checks.''
    In section 304 of the Federal Aviation Reauthorization Act of 1996, 
Pub. L. 104-264 (the Act), the Congress directed the FAA to expand the 
use of both employment history investigations and fingerprint-based 
criminal records checks. Section 304 of the Act directs the 
Administrator to issue regulations requiring employment history 
investigations and, as needed, criminal record checks for individuals 
who screen passengers and property that will be carried in an aircraft 
cabin in air transportation or intrastate air transportation. The 
regulations would also apply to supervisors of screeners. The Act also 
provides that Administrator with the discretionary authority to apply 
these investigations to individuals who exercise security functions 
associated with cargo and baggage. In addition, section 306 of the Act 
directs the Administrator to provide for the periodic audit of the 
effectiveness of the criminal record checks. The FAA believes that the

[[Page 51205]]

measures mandated by Congress will help ensure the integrity of the 
airport environment.
    In related security measures the FAA, on August 1, 1997, issued two 
NPRMs: Airport Security (62 FR 41760) and Aircraft Operator Security 
(62 FR 41730). These notices proposed to amend the existing Airport 
Security and Aircraft Operator Security rules in 14 CFR parts 107 and 
108. In addition these amendments would revise certain applicability 
provisions, definitions and terms; reorganize these rules into subparts 
containing related requirements; and incorporate some requirements 
already implemented in airport and air carrier approved security 
programs. The comment period on both proposals was extended to June 26, 
1998 (63 FR 19691, April 21, 1998). Neither of these proposals 
addresses employment history, verification, and criminal records 
checks. If these NPRMs become final rules then Sec. 107.31 would be 
renumbered as Sec. 107.207 and Sec. 108.33 would be renumbered as 
Sec. 108.221.

General Discussion of the Rule

    On March 19, 1997, the FAA issued an NPRM proposing to revise the 
requirements for an Employment History, Verification and Criminal 
Records Check in Secs. 107.31 and 108.33 (62 FR 13262). In the notice 
the FAA proposed to extend the requirement for employment history 
investigations to persons who perform checkpoint screening functions at 
airports and their supervisors. The addition of screeners only affects 
part 108. The FAA also proposed to require airport operators and air 
carriers to audit the employment history investigations that they 
perform under Secs. 107.31 and 108.33, respectively.
    A new term appears in this final rule. The NPRM used the term 
``tenant.'' The FAA determined that the term ``tenant'' was not 
accurate for the purposes of proposed Sec. 107.31. The FAA has defined 
the new term ``airport user'' for the purposes of Sec. 107.31 only. 
``Airport user'' means those employers, not subject to Sec. 108.33, 
whose employees seek unescorted access privileges to the SIDA. An 
airport user may include those companies that do not have business 
offices at the airport, but require access to the airport's SIDA. 
Screeners are the responsibility of air carriers.
    The FAA received 27 comments on the NPRM. A summary of those 
comments and an explanation of changes made in the final rule in 
response to those comments appear below under ``Discussion of 
Comments.'' Significant changes between the NPRM and the final rule 
include the following:
    1. Section 107.31(p), Airport user responsibility, was added to the 
final rule to accommodate other changes related to comments received. 
Several comments to the NPRM stress the difficulty the airport 
operators would have in maintaining the investigative files for all 
individuals with unescorted access. In the final rule, Sec. 107.31(p) 
allows airport users to maintain the employment history files after the 
airport operator has performed a preliminary review.
    2. Section 108.33(m), Air carrier responsibility, was added to 
clarify for air carriers the designations of responsibility necessary 
for compliance with this rule. This section recognizes the extent of 
the air carriers' responsibilities with respect to their employees and 
security screeners.
    3. The FAA has reorganized the employment history investigation by 
dividing the investigative process into Part 1 and Part 2. This 
clarification, which does not substantively change the requirements, 
was added to both Secs. 107.31 and 108.33. Part 1 of the employment 
history investigation entails a review of the employment record of the 
individual for the past 10 years, and verification of the most recent 5 
years of employment. This portion of the employment history 
investigation may be performed by an airport user, or in the case of 
air carriers by a screening company. Part 2 of the investigation is a 
fingerprint based criminal record check. If Part 1 reveals certain 
questionable items (triggers), such as an unexplained 12 month gap in 
employment, Part 2 must be performed. It is important to understand 
that Part 2 of the investigation only occurs if there is a triggering 
event discovered during Part 1 of the investigation and the employer 
and the individual agree to go forward with the fingerprint check. If 
the airport user chooses not to continue, or if the individual when 
requested chooses not to submit fingerprints, then the employment 
history investigation will stop and the individual will not be eligible 
for unescorted SIDA access or to perform or supervise screening 
functions.

Discussion of Comments

    A total of 27 comments were received in response to the NPRM. 
Commenters include airport operators, air carriers and their respective 
associations, pilot associations, cargo companies, screening companies, 
and food service companies. While most commenters support the intent of 
the proposed rule to improve airport security, many commenters disagree 
with specific aspects of the proposal. Comments are discussed in detail 
below.
1. Scope (Secs. 107.31(a) and 108.33(a))
    The FAA proposed a clarifying amendment (Sec. 108.33(a)(2)) to 
ensure that an employment history investigation be completed for each 
individual issued an air carrier identification badge that is 
recognized as ``airport accepted'' media. By recognizing the air 
carrier badge the airport operator authorizes unescorted access 
privileges for that individual. Additionally, the FAA proposed 
(Sec. 108.33(a)(3)) expanding the applicability of the employment 
history investigation requirement to include (a) individuals performing 
screening functions associated with persons and property entering the 
aircraft cabin, and (b) individuals holding the two immediate 
supervisory positions above the screeners. This section continues to 
apply to those individuals who currently have unescorted access 
privilege.
    Some comments address the issue of airline issued media. Two 
commenters state that if an individual has airline issued access media, 
that media should allow access to SIDAs regardless of whether it was 
issued at the individual's home airport. One commenter states that 
flight crewmembers should be able to use their company identification 
for access to the SIDA. Another commenter states that all air crews 
should be required to carry airline issued media and that the 
background checks and audit provisions should apply to such media.
    One commenter suggests that the 10-year background check apply to 
issuing officers of airport tenants and contractors, including 
screening companies.
    One commenter suggests that airport tenant service providers should 
be allowed to voluntarily obtain a certified standard security plan 
from the FAA in the same manner currently available to freight 
forwarders and cooperative shipper's associations. Such an approach 
would allow the security programs of tenants to be certified by the FAA 
in the same manner as an air carrier's, thereby streamlining the 
administrative process for airport contractors and their tenants.
    FAA Response: It is the FAA's intent that the current practice of 
recognizing air carrier media by various airport operators as ``airport 
approved'' media be continued. The purpose of Sec. 108.33(a)(2) is to 
maintain the current

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practice and to ensure those air carrier employees who are extended 
such privileges have also undergone the same employment history 
investigation as others who have SIDA access.
    The FAA does not require the creation of an ``issuing officer'' nor 
is there a clear understanding of what exactly the job duties are for a 
person holding such a position. Since the airport operator is the only 
approval authority for granting unescorted access the regulation covers 
those that might be granting such access on behalf of the airport. 
Several airport operators are requesting that airport users limit the 
number of persons who may sign a certification on behalf of that 
company. This makes sense from operational standpoint; however; it is 
FAA's view that this representation is only indicating the 
investigation has been conducted. The representative is not granting 
unescorted access on behalf of the airport operator. If in fact the 
airport user's representative is granting of authorizing unescorted 
access, the rule requires an employment history investigation for this 
person under Sec. 107.31(a).
    The NPRM was published to address employment history investigations 
and not for addressing the creation of tenant security programs; 
therefore the final rule does not address such programs. This issue was 
addressed in the Airport Security (62 FR 41760) and Aircraft Operator 
Security (62 FR 41730) NPRMs and will be further addressed in 
subsequent documents resulting from the NPRMs for Airport and Aircraft 
Operator Security.
    The FAA will continue to evaluate all elements of the civil 
aviation security system to determine if further changes are warranted.
2. Grandfathering of Current Employees (Secs. 108.33(a) (3) and (4))
    The FAA proposed that all screeners hired after the effective date 
of the new regulations would be required to have an employment history 
investigation (Sec. 108.33(a)(3)). Retroactive background checks were 
proposed in Sec. 108.33(a)(4) for individuals who were hired before the 
effective date of the rule and who remain employed for a year after the 
effective date.
    A number of commenters, including National Air Transportation 
Association (NATA), Regional Airline Association (RAA), Air Transport 
Association of America (ATA), and Air Line Pilots Association (ALPA), 
say that requiring employment background checks on current screening 
personnel and supervisors is not justified because these employees have 
already undergone a 5-year verification check and on-the-job 
observation. According to these commenters, the proposed requirement 
would add unnecessary costs and paperwork without increasing aviation 
security. The commenters believe these individuals should be 
grandfathered into the final rule at its effective date.
    Two commenters, Airports Council International and American 
Association of Airport Executives (ACI-NA and AAAE), state that 
airports which have proactively applied Sec. 107.31 to security 
screeners should not have to reissue/revalidate access media nor do a 
second background investigation for these screeners.
    ALPA states that the current rule applies only to those individuals 
seeking authorization for unescorted access privileges, and not to 
those who were employed before January 31, 1996.
    One commenter requests clarification that Sec. 108.33(a)(2) is not 
a retroactive requirement.
    One commenter states that it should be made clear that 
Sec. 108.33(a)(2), extending background investigation to each 
individual who is issued an air carrier identification badge that is 
accepted by an airport for unescorted access, applies only to flight 
crewmembers and other employees hired after the effective date. A 
retroactive application would impose very significant administrative 
burdens and costs on carriers.
    Another commenter states that employees with access to the SIDA 
were grandfathered when the Access Investigation rule went into effect, 
therefore, the time frame for compliance with the proposed rule should 
be shortened.
    FAA Response: The FAA has reconsidered its proposal to require 
currently employed screeners to undergo the employment history 
investigation. The FAA agrees with the commenters who state that 
requiring employment history investigations of current screening 
personnel and supervisors who have already undergone a 5-year 
verification check and on-the-job observation would add more costs and 
paperwork without providing a comparable increase in airport security. 
Further, because of the typically high turnover rates, much of the 
screener population will have been subjected to the expanded employment 
history investigation within a relatively short period. Therefore, the 
FAA concludes that air transportation security does not require the 
retroactive application of this rule to current screeners and their 
supervisors.
    In response to the commenter requesting clarification about 
Sec. 108.33(a)(2), the FAA confirms that it is not retroactive. This 
change was proposed in the NPRM and will become effective upon the 
effective date of this final rule.
    In response to the commenter questioning whether the grandfathering 
provisions of the access investigation still apply, this rule does not 
change that grandfather provision. Those individuals having unescorted 
access prior to January 31, 1996, were grandfathered and this status 
will continue.

3. Employment History Investigation (Secs. 107.31(b)(1) and 
108.33(b)(1))

    The FAA proposed replacing the term ``access investigation'' with 
``employment history investigation,'' The 10-year employment history 
review and the 5-year verification requirements would remain unchanged, 
although the scope of application would be expanded to include 
screeners and supervisors regulated under Sec. 108.33(a)(3).
    While one commenter supports the terminology change, another 
recommends that the existing terminology, ``access investigation'' be 
retained because it is understood that the rule applies to those who 
may not have access to the SIDA. Also, this change would increase 
paperwork costs, as well as training costs.
    This commenter further states that the workforce will experience 
stress and fatigue due to the delays from expanded background checks. 
This, in turn, will result in more safety problems, as well as the 
movement of potential workers away from this industry and towards 
comparable paying jobs with no such delays.
    One commenter recommends that checkpoint screeners undergo the same 
employment background investigations as regular law enforcement 
officers including performance of a criminal record check both on 
National Crime Information Center (NCIC) and local records.
    NATA says that the FAA must clarify which carrier would be 
responsible for conducting the required checks in cases where several 
carriers share a security checkpoint. The commenter also seeks 
clarification in cases where control of the checkpoint changes from one 
carrier to another.
    FAA Response: In response to comments that the term ``access 
investigation'' not be changed due to the costs of changing application 
forms and retraining personnel on the terminology, the FAA did not and 
is not currently requiring a title be placed on any regulated parties 
application. The FAA purposely did not require the

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development of any new forms with the Access Investigation, but 
indicated the required information could be added to the employers' 
current applications. This final rule adopts the language as proposed.
    In response to the commenter who believes that the workforce would 
experience stress and fatigue due to delays from the expanded 
background checks, the FAA does not agree that these requirements will 
result in delays that might cause stress on the industry. The 
employment history investigations have not been expanded and the 
process remains the same as it was before. The new population being 
added to the 10-year investigation will soon find the process routine 
and will view it as another step to take prior to performing screener 
functions.
    In response to the comment requesting that screeners undergo the 
same background check as law enforcement officers, the FAA does not 
equate screeners with law enforcement officers. Additionally, the FAA 
notes that regulated parties are free to determine, within the law, any 
standard pre-employment qualifications deemed necessary for their 
needs. After an individual has successfully met those requirements, 
then the individual would be subject to the FAA regulations that apply 
to the position.
    In response to NATA's concern about several carriers having 
responsibility at one checkpoint, the FAA assures the commenter that 
these situations will be handled in the same manner they are currently 
being addressed for other regulatory issues. The FAA will rely on the 
air carriers, their principal security inspectors, and local FAA agents 
to continue to determine the best methods to address compliance with 
these regulations.
    The FAA has clarified in the final rule the requirements in Secs.  
107.31(b)(1) and 108.33(b)(1) by explaining that this portion of the 
employment history investigations be referred to as Part 1. Part 1, 
which is the 10-year employment history and 5-year verification, must 
always be conducted. For reasons discussed in section 6 of the 
Discussion of comments, the National Crime Information Center (NCIC) is 
not available for implementing this rule.
    Part 2 of the 10-year employment investigation is addressed in 
Secs. 107.31(c)(5) and 108.33(c)(5). Part 2 consists of the criminal 
records check and is required only when a trigger has been met, but 
will not be conducted unless both the employer and the affected 
individual agree to proceed with the process.
4. Disqualifying Crimes (Secs. 107.31(b)(2) and 108.33(b)(2)
    The FAA did not propose any changes to the list of disqualifying 
crimes; however, some commenters requested changes to the list of 
disqualifying crimes.
    Commenters recommend that the list of disqualifying crimes be 
expanded to include the manufacture, possession and use of controlled 
substances and crimes such as strong arm robbery, theft, auto theft, 
and burglary in order to more closely mirror the crimes listed in Part 
1 of the Uniform Crime Reporting Act.
    One commenter suggests that any felony conviction or arrest should 
preclude employment in security checkpoint positions.
    FAA Response: The FAA did not propose and is not expanding the list 
of disqualifying crimes in this final rule. If regulated parties want 
to add anything to their pre-employment standards they may do so. The 
FAA is aware that several airport operators and air carriers regularly 
conduct local criminal record checks and it is under the authority of 
state or local law that such checks are conducted. The FAA encourages 
the recognition by all employing parties of the distinction between 
their pre-employment standards and qualifications, which are separate 
from FAA regulations.
5. Investigative Steps (Secs. 107.31(c) and 108.33(c)
    The FAA proposed no substantive changes to these sections, however, 
one commenter requests that the FAA clarify the language of proposed 
Sec. 107.31(c)(4), which requires the airport operator to verify the 
information on the most recent 5 years of employment history. The 
commenter believes that the airport operator is required to have final 
responsibility for this function but is not required to verify every 
single background investigation done by employers.
    Another commenter states that the current employment verification 
process is not effective because of the high turnover rate in the 
industry. It is difficult and time consuming to verify if an 
applicant's supervisor has left the company.
    For these reasons and because the rule in intended to prevent 
individuals convicted of disqualifying crimes from obtaining access to 
the SIDA or from performing security functions, NATA recommends that 
verifications be used to ascertain that an individual was not 
incarcerated in each one-year period. This will allow affected 
companies to meet the intent of the regulations by determining if a 
disqualifying crime has been committed.
    NATA adds that former employers will limit the employee information 
they provide out of fear of lawsuits from employees originating from 
the transfer of records, and that would be counterproductive to 
enhanced security.
    Several commenters, including ACI-NA and AAAE, request that the FAA 
clarify the employment verification process and state what it considers 
to be acceptable verification. These commenters recommend that the 
employment verification process be standardized to ensure consistency 
among FAA regional security offices.
    FAA Response: The proposed rule language has been modified in the 
final rule to refer to the first stage of the employment history 
investigation, paragraph (C)(1)-(4) as Part 1. Paragraph (c)(1) lists 
the information that the individual must provide on the application.
    The final rule does require the airport operator to verify the 
information on the most recent 5 years of employment history. The 
airport operator is responsible for ensuring that the verification has 
been completed. The verification is a portion of the investigative 
process. The verification may be completed by the airport user, which 
the airport operator may accept through the certification.
    There are many avenues that may be used in the verification 
process. The fact that the applicant's former supervisor is not 
available does not mean that the owner or other supervisors of the 
company could not vouch for the applicant. Persons other than the 
immediate supervisor presumably have access to company employment 
records.
    It is unclear to the FAA why former employers are hesitant to 
provide past employment dates. It is not known to be a basis for a 
lawsuit to confirm employment dates. The FAA suspects that liability 
issues arise when there are more than just past employment dates that 
are being requested. To be in compliance with this regulation only the 
confirmation of employment dates is required. The employment history 
information required by this final rule from former employers is the 
same as required by the current rule.
    This final rule was not intended to address the specifics of the 
verification process. Future FAA guidance may be provided in another 
forum in order to respond to the questions pertaining to the 
verification process and acceptable documentation.

[[Page 51208]]

6. Triggers/FBI Fingerprint Check (Secs. 107.31(c)(5) and 108.33(c)(5))

    The FAA proposed only an editorial change to the list of 
``triggers.'' No additions to the current criteria were proposed.
    NATA states that if the airport tenant who is hiring an individual, 
covered by the background check rule, does not receive any of the FBI 
information, how can that airport tenant employer be ``protected * * * 
from future liability?'' For example, if a potential employee has no 
disqualifying crimes, but has several convictions for theft, the 
business wanting to hire this person as a baggage handler would be 
unaware of this record.
    One commenter advises the FAA that a criminal records check does 
not provide information on individuals who have resided outside the 
U.S.
    Several commenters state that the 54-day estimate for the FBI 
fingerprint check is excessive and costly. One commenter says that the 
FAA should ensure that the fingerprint check is completed within 30 
days. Another commenter adds that after 30 days it is no longer viable 
to keep a new hire on its payroll doing work that does not require 
unescorted SIDA access.
    FAA Response: As stated, the proposal did not change the 
requirements other than extend them to screeners and screener 
supervisors.
    In response to the commenter requesting access to FBI criminal 
records information for airport tenants, the FBI does not allow such 
access. The FBI criminal record information may be used only for the 
purposes of this rule as stated in Sec. 107.31(i). The FAA does not 
have the statutory authority to provide access to FBI criminal records 
to anyone other than air carriers and airport operator.
    In response to the commenter stating that a criminal records check 
does not provide information on individuals who have resided outside 
the U.S., the FAA agrees with respect to convictions in foreign 
countries. The criminal records check will provide information on 
individuals convicted in the U.S. of crimes regardless of where they 
currently reside. If an individual has been convicted of a crime 
outside the U.S., obtaining that criminal record is beyond the FAA's 
current statutory authority.
    The FAA has received many telephone calls regarding the current 
Secs. 107.31(c)(5) and 108.33(c)(5). Many believe the employer is 
directed or authorized to conduct a criminal records check of all 
employees/potential employees. The FAA cannot stress enough that the 
regulated parties are not to submit fingerprints for a criminal record 
unless such action has been triggered by one of the conditions listed 
in Secs. 107.31(c)(5) and 108.33(c)(5). However, even with a triggering 
event the criminal record check may not occur if either the employer or 
the employee/potential employee chooses not to go forward with the 
process.
    In order to assist those seeking to understand this regulation the 
final rule has been amended to reference the fingerprinting process of 
the employment history investigation as Part 2. If Part 2 of the 
employment history investigation occurs, only part 107 airport 
operators or part 108 air carriers are statutorily permitted to request 
a comparison of fingerprints against criminal files maintained by the 
FBI. Airport users or screening companies who wish to proceed with a 
criminal record check for employees or potential employees will make 
such a request of the FAA through the appropriate airport operator or 
the air carrier.
    The FAA has changed the wording in these sections to acknowledge 
that not everyone has a criminal record. The final rule effects that 
the submission of fingerprints are once collected will be compared with 
the FBI's criminal files to see if a match exists and a criminal record 
is available.
    The FAA agrees with commenters who indicate the turnaround time for 
receiving record information is too long. The FAA will continue in its 
attempts to ensure a speedy return for all fingerprint cards submitted. 
The FAA is confident that once an automated fingerprint processing 
system is fully implemented, the turnaround time will greatly improve. 
The FBI has indicated to the White House Commission on Aviation Safety 
and Security that the turnaround time will be at most seven days.
    The FAA will keep the regulated parties abreast of any developments 
regarding the automated processing. Clearinghouse services may be 
sought by the FAA to assist those regulated parties who will be 
transitioning to automated fingerprint processing. The FBI determines 
the cost of processing fingerprints and will notify the FAA of any cost 
increases. The FAA will in turn notify the regulated parties of those 
costs. For further discussion of this issue, see the Regulatory 
Evaluation.
    Regardless of the fingerprint processing utilized, either through 
electronic transmission or not, the requirements of Secs. 107.31(c)(5) 
and 108.33(c)(5) remain the same.
    Several commenters brought up the use of the NCIC. Title 49 U.S.C. 
Sec. 44936 states that ``if the Administrator requires an 
identification and criminal record check, to be conducted by the 
Attorney General, as part of an investigation under this section, the 
Administrator shall designate an individual to obtain fingerprints and 
submit those fingerprints to the Attorney General.'' There was not and 
there still is not any intention of confirming criminal records by name 
alone. As previously noted by the FAA and the FBI, the use of NCIC is 
not a definitive means of identification and is not authorized to 
satisfy the requirements of this rule.
7. Individual Notification (Secs. 107.31(d) and 108.33(d))
    The FAA proposed requiring the regulated party to identify a point 
of contact when it notifies an individual that a criminal records check 
will need to be conducted.
    One commenter recommends that this section specify how the affected 
individual should be notified prior to commencing the criminal records 
check, i.e., should notification be in writing and be acknowledged by 
the affected individual in writing and by signature.
    FAA Response: The FAA believes that oral notification should be 
adequate, but understands that some regulated parties may choose to 
handle such a matter with written notification and acknowledgement by 
the affected individual. This business decision is not appropriate for 
and will not be addressed in this final rule.
8. Fingerprint Processing (Secs. 107.31(e) and 108.33(e))
    The FAA proposed changing paragraph (e)(1) (formerly paragraph 
(i)(1)) to clarify that only fingerprint cards approved by the FBI and 
issued by the FAA may be submitted. A change to paragraph (e)(5) was 
proposed to reflect the increase in the processing cost. The proposed 
paragraph did not state an actual dollar amount. The FAA also proposed 
that the applicable fee would be provided through the local FAA 
security offices.
    ACI-NA and AAAE state that the first sentence of Sec. 107.31(e) 
should read ``If finger-print based criminal history check is required 
pursuant to paragraph (c)(5), the airport operator * * * *'', to ensure 
that it is understood that fingerprints do not need to be taken until 
indicated by one of the triggers.
    The same commenter states that obtaining fingerprints under the 
direct observation of the airport operator or law enforcement officer 
is inconvenient for those airports without on-site

[[Page 51209]]

facilities. It should be acceptable to utilize local police department 
personnel whose activities and expertise are acceptable by local, state 
and federal courts.
    Two commenters, including ACI-NA and AAAE, express concern that FAA 
local offices might add charges to the rate of processing fingerprints. 
One of the commenters proposes that a flat rate be retained or that 
changes in the future be implemented only after a public hearing or 
formal consultation with air carriers.
    One commenter states that the FAA and FBI should work together to 
expedite development of and direct access to the FBI's Integrated 
Automated Fingerprint Identification System (IAFIS) by law enforcement 
agencies supporting airports.
    FAA Response: The lead-in sentence of Secs. 107.31(e) and 108.33(e) 
has been changed in the final rule to clarify that the fingerprint 
processing requirements must be complied with ``if a fingerprint 
comparison is necessary'' under Secs. 107.31(c)(5) and 108.33(c)(5). A 
fingerprint comparison, Part 2 of the employment history investigation, 
is required only if one of the triggering conditions occurs in Part 1 
of the employment history investigation.
    Local police departments are considered law enforcement officers 
and by current regulation may assist in the collection of fingerprints. 
This option has not been changed in the final rule.
    As stated earlier the designated rate for processing each 
fingerprint card is determined by the FBI, conveyed to the FAA and will 
be passed on to the regulated parties. The FAA does not add any of its 
own administrative costs or user fees. When the FBI determines an 
increase is necessary it will formally notify the FAA. The FAA national 
headquarters will receive information on fees and forward it to the 
regulated parties via the local security field offices. The cost is 
determined by the FBI and is not negotiable.
    The purpose of having the local FAA security offices advise the 
regulated parties of the fee is to prevent the need to go through the 
prolonged process of rulemaking to make such an announcement. Fees are 
periodically changed by the entities providing the services.
    Regarding the comment on providing expedited access to law 
enforcement agencies supporting airports to the FBI's IAFIS, the FAA is 
aware such work is in progress. However, the law enforcement officer's 
access to IAFIS exists for law enforcement purposes only and is not 
accessible for employment history investigations.
9. Determination of Arrest Status (Secs. 107.31(f) and 108.33(f))
    The proposed rule made no changes to the current requirements in 
Secs. 107.31(f) (formerly paragraph (j)) and 108.33(f). No comments 
were received on these requirements.
10. Corrective Action by Individuals (Secs. 107.31(h) and 108.33(h))
    The FAA proposed no substantive changes to Secs. 107.31(h) 
(formerly Sec. 107.31(k)) and 108.33(h) (formerly Sec. 108.33(g)). No 
comments were received on these requirements.
11. Employment Status While Awaiting Criminal record Checks 
(Secs. 107.31(j) and 108.33(j))
    The FAA proposed for Sec. 108.33(j) that those individuals applying 
for screening functions and screening supervisory positions would not 
make independent judgments until their employment history 
investigations are completed which includes a criminal record check if 
needed. Sections 107.31(j) and 108.33(j) simply restate the current 
requirement to escort those who are seeking, but have not yet been 
cleared for unescorted SIDA access.
    Several commenters express concern that escorting newly hired 
workers who are awaiting clearance will put a burden on current 
employees, especially if staffing shortages occur.
    One commenter says that the meaning of Sec. 108.33(j)(2), ``* * * 
applicants * * * must not exercise any independent judgments regarding 
those functions'' is unclear and that it should be rewritten.
    FAA Response: The FAA believes that some commenters have 
misunderstood the requirements for initiating a criminal record check. 
Only those persons who meet at least one of the triggers are required 
to submit fingerprints for a criminal record check (Part 2) in order to 
further pursue their considerations for performing screening functions. 
The FAA assumes this will not be the typical case. If the individual 
has no need for criminal record check, then the only waiting period is 
for the completion of the employment history verification portion (Part 
1).
    In response to the request for clarifying the language that 
screeners ``shall not exercise any independent judgments. * * *'', 
the FAA refers the commenter to that portion of the security program 
dealing with initial training of screeners for further 
clarification.
12. Recordkeeping (Secs. 1.07.31(k) and 108.33(k))
    The FAA proposed that only direct employees of airport operators 
and air carriers may carry out responsibilities related to requesting, 
processing, maintaining and destroying criminal records.
    Several commenters, including ACI-NA and AAAE, disagree with the 
proposal requiring criminal record responsibilities to be carried out 
by direct airport operator employees, excluding contract personnel. One 
commenter states that this proposal will prevent airports from 
continuing to use law enforcement officers, which clearly does not 
compromise security.
    The same commenters state that precluding the use of contractors 
will impinge upon the airport operator's authority to carry out a 
federal mandate in a confidential, efficient and economic manner.
    One commenter petitions the FAA to request reconsideration by the 
FBI and to strike this limitation.
    ACI-NA and AAAE request that the regulation contain an acceptable 
method of destruction of criminal and employment background 
investigation files.
    NATA recommends that the FAA ``seek the same legislative solutions 
as found in the Pilot Records Act'' to protect past and prospective 
employers subject to liability that is associated with the sharing of 
sensitive information.
    One commenter asks if the airport operator must obtain records for 
only those employees of tenants who have had the criminal record checks 
performed or for all employees of tenants with SIDA access.
    Another commenter states that the NPRM should be more specific in 
defining ``where the air carrier's responsibility for file maintenance 
begins and the airport operator's ends.'' Also clarification is needed 
about whether the air carrier or airport operator will be responsible 
for maintaining the files of an air carriers' sub-contractors and sub-
tenants.
    FAA Response: In response to commenters' desire to use contractors 
the FAA has not changed the final rule concerning the handling of 
criminal records by direct employees only. The information contained in 
the criminal records is under the custody of the FBI and they determine 
how the information will be handled. The FAA has been in contact with 
the FBI to confirm this limitation regarding the handling by direct 
employees. The FBI restrictions are contained in FBI regulations and 
modifications to FBI interpretations are not currently being 
considered.
    Furthermore, with respect to using contractors since the regulation 
requires a criminal record be processed through the FAA it remains 
unclear what

[[Page 51210]]

services a contractor is providing to the regulated parties that are 
necessary for compliance with this regulation.
    In response to the comment about destruction of criminal records 
the FBI does not currently have a standard regarding the destruction of 
those records. With respect to destruction of employment history 
investigation files the FAA does not generally prescribe means of 
destroying records no longer necessary for regulatory compliance. 
Discussion with the local FAA offices might be beneficial to determine 
a means of appropriately destroying both types of records.
    With respect to NATA's recommendation the FAA does not consider the 
information needed for this regulation to be sensitive. This rule only 
addresses the collection and confirmation of employment dates, which 
are generally not considered confidential information. The FAA does not 
agree that information required for this regulation necessitates 
legislation.
    Additionally, the contents of the investigative files should 
contain only the information required for compliance with this 
regulation. No personnel related materials, such as insurance papers or 
training records need be included in the investigative file or other 
information which might be construed as sensitive. The airport user is 
strongly encouraged to redact information in the investigative files 
that is not related to the requirements of this regulation. The FAA 
believes that if only the information required for compliance with this 
regulation is contained in the investigative file, then any concerns 
about liability issues would be resolved. There is no requirement that 
the airport user provide original paperwork to the airport operator, 
however, the paperwork provided must be a truthful rendition of the 
record.
    The comment requesting clarification on the maintenance of files 
for those contracted by the air carriers has been addressed in this 
final rule. The FAA specifically holds the air carrier responsible for 
the screening companies it hires to perform its screening functions. 
The air carrier may delegate the performance and maintenance of Part 1 
of the employment history investigation files to screening companies 
but the air carriers remain responsible for compliance with this final 
rule. Only the air carrier's direct employees are to maintain Part 2 
investigative files.
    For clarification on the maintenance of files the FAA would like to 
point out for those airport operators who accept clarification from air 
carriers, for screeners requiring unescorted access, that Part 1 of the 
employment history investigation will be maintained by the air 
carriers. Additionally, air carriers are required to conduct self-
audits and they are subject to regulatory audits performed by the FAA. 
These audits are intended to assist air carriers with compliance 
regarding this rule. Only air carriers, and not airport operators, have 
the regulatory responsibility to conduct employment history 
investigations on individuals seeking to perform screening functions 
under this rule.
    In this final rule the airport operator must, at the time it 
accepts a certification, collect the completed investigative file and 
either maintain or delegate through the certification, the maintenance 
responsibility to the airport user. If the airport user maintains the 
investigative file the rule requires the airport operator to conduct a 
preliminary review of the file to ascertain that it is complete. The 
preliminary review would lead to the rejection and return of those 
files that appear to be incomplete. Any rejections due to 
incompleteness should in no way inhibit re-submissions by the airport 
user after the application has been completed. The preliminary review 
is different from the auditing process where the investigative file is 
assessed for accuracy and confirmation that the information was 
verified.
    The airport operator may accept a certification from the air 
carrier, but need not receive the investigative file. The air carrier 
is separately responsible under Sec. 108.33 for maintaining appropriate 
employment investigative files.
13. Continuing Responsibilities (Secs. 107.31(l) and 108.33(l))
    The FAA proposed that individuals who have been cleared for 
screening or supervisory functions or unescorted SIDA access will be 
obligated to report themselves to their employer if they are 
subsequently convicted of any disqualifying crime. The FAA also 
proposed that the tenant or contractor employer must report to the 
airport operator or the air carrier that an individual may have a 
possible conviction of a disqualifying crime. Additionally the FAA 
proposed that once the airport operator or air carrier receives this 
information it must determine the status of the conviction and take 
appropriate action if the conviction is confirmed.
    One commenter states that this proposal is meaningless because it 
imposes no penalty on the individual for noncompliance. The employee 
has more incentive not to report since a loss of SIDA access would 
probably result in the loss of the employee's job.
    The commenter also questions if the FAA is requiring that a 
fingerprint check be done on individuals to investigate felony 
convictions that may have occurred after the initial employment check.
    FAA Response: The commenter is incorrect as there is potential for 
a civil penalty under 14 CFR part 13 on this section as well as on all 
sections of the security regulations.
    The FAA understands that individuals who report themselves will 
lose their unescorted access privileges. The FAA also is aware of the 
potential for obtaining other positions at the airport that do not 
require unescorted access privileges, many times with the same 
employer. The same may not be true with those individuals seeking 
positions as screeners.
    There is no regulatory authority to request nor is there a 
regulatory responsibility to obtain a fingerprint based criminal record 
check after the initial employment check has been completed. However, 
the airport operator and air carrier are obligated to comply with 
Secs. 107.31(e)(2) and 108.33(e)(2) to determine if there is a 
conviction. The FAA would also point out that a conviction of a felony 
is not automatically disqualifying. Only a conviction of one of the 
crimes listed in Secs. 107.31(b)(2) and 108.33(b)(2) is disqualifying.
    In this final rule the FAA added Sec. 107.31(p)(1) which also 
requires airport users to notify the airport operator if information 
becomes available to them regarding a possible conviction of a 
disqualifying crime of one of their employees.
14. Exceptions (Sec. 107.31(m))
    The FAA proposed that the exception to the employment background 
investigation requirement for individuals who have undergone a U.S. 
Customs Service background investigation would no longer be recognized.
    One commenter suggests that the proposal to remove the Customs 
exception should result in a coordinated effort between the Customs 
Service and the FAA to create one investigation process that would meet 
the requirements of both agencies.
    NATA states that the removal of the exception will result in a 
redundant check for many employees requiring SIDA access that also 
operate in Customs areas. NATA adds that the FAA needs to provide 
further explanation why the Customs

[[Page 51211]]

background check no longer meets the requirements of the FAA 
regulations.
    ACI-NA and AAAE agree with the removal of the Customs exception and 
states that the FAA should clarify that a new background check is not 
necessary for those individuals who were authorized through acceptance 
of the Customs Service background check before this rule takes effect.
    FAA Response: Since publication of the unescorted access privilege 
rule the FAA has determined that the Customs Service background checks 
are not performed in a standard manner nationally. Customs regulations 
do allow for variation. The FAA has made the determination that due to 
the variation within the Customs Service the FAA will no longer 
recognize the background checks performed by the Customs Service.
    Since the Customs Service and the FAA serve different functions 
having different missions and obligations it is unlikely that the two 
agencies could mesh their requirements for one background 
investigation.
    Those individuals who were granted unescorted access based on the 
Customs background check prior to the effective date of this rule will 
be grandfathered as noted in Sec. 107.31(m)(4).
15. Investigations by Air Carriers and Tenants (Sec. 107.31(n))
    The FAA proposed that when the airport operator chooses to accept a 
tenant's certification the airport operator must collect and maintain 
the entire employment history investigation file.
    Several commenters oppose the proposal that airport operators 
collect and maintain the entire history background investigation files 
because it would impose substantial administrative, filing, storage, 
and cost burdens on the airport operator, while offering minimal 
security justification.
    ACI-NA and AAAE state that this requirement will make the airport 
operator liable for these records and their accuracy, which should be 
the responsibility of the air carriers and tenants.
    A commenter states that the proposal would require the 
dissemination of confidential and personal information to more than one 
hundred airports, increasing the possibility of unauthorized 
disclosure.
    RAA recommends that the employer maintain a copy of the background 
employment investigation files at a central location while making them 
available for FAA audit. This would meet the needs of the FAA and 
protect the privacy of individual employees. Other commenters suggest 
that airport tenants should maintain their employee background check 
records at a location in the airport where they will be available for 
random inspections by the airport operator or FAA.
    Two commenters state that requiring the airport operator to 
maintain and control written records for air carriers and their 
contractors is redundant since air carriers are required under 
Sec. 108.33(m)(1) to have such files available on-airport.
    A commenter states that airport operators should not be responsible 
for foreign air carrier compliance and that the FAA should audit part 
129 operators. In addition, the FAA should audit and hold accountable 
tenants with approved Tenant Agreements.
    One commenter raises the issue of discrimination against foreign 
flags since under Sec. 107.31(n) only foreign air carriers and tenants 
would be required to provide an entire employment background 
investigation file. The commenter asks whether this will be an 
automatic audit of all foreign air carrier submissions.
    One commenter asks if the airport operator must obtain records for 
only those employees of tenants who have had the criminal records check 
performed or for all employees of tenants with SIDA access.
    Another commenter states that the NPRM is confusing because 
Sec. 107.31(k) appears to require airport operators to retain air 
carrier employment application and background investigation 
verification records, while Sec. 107.31(n)(2) seems to require only 
completed tenant
    RAA recommends that the employer maintain a copy of the background 
employment investigation files at a central location while making them 
available for FAA audit. This would meet the needs of the FAA and 
protect the privacy of individual employees. Other commenters suggest 
that airport tenants should maintain their employee background check 
records at a location in the airport where they will be available for 
random inspections by the airport operator or FAA.
    Two commenters state that requiring the airport operator to 
maintain and control written records for air carriers and their 
contractors is redundant since air carriers are required under 
Sec. 108.33(m)(1) to have such files avialable on-airport.
    A commenter states that airport operators should not be responsible 
for foreign air carrier compliance and that the FAA should audit part 
129 operators. In addition, the FAA should audit and hold accountable 
tenants with approved Tenant Agreements.
    One commenter raises the issue of discrimination against foreign 
flags since under Sec. 107.31(n) only foreign air carriers and tenants 
would be required to provide an entire employment background 
investigation file. The commenter asks whether this will be an 
automatic audit of all foreign air carrier submissions.
    One commenter asks if the airport operator must obtain records for 
only those employees of tenants who have had the criminal records check 
performed or for all employees of tenants with SIDA access.
    Another commenter states that the NPRM is confusing because 
Sec. 107.31(k) appears to require airport operators to retain air 
carrier employment application and background investigation 
verification records, while Sec. 107.31(n)(2) seems to require only 
completed tenant employment background investigation files to be 
obtained by the airport operator.
    A commenter requests that the FAA clarify that if the file is 
incomplete and rejected, there is no liability for loss of employment 
caused by the airport operator's action.
    A commenter asks whether the original background investigation file 
or merely a copy should be submitted to the airport operator and asks 
``[i]f the original is submitted, will this then relieve the carrier of 
the audit by the FAA?''
    Another commenter states that the rule should be modified to 
require airport operators to accept the air carrier's certification 
that a background check has been performed. This commenter adds that 
with the adoption of Sec. 108.14 carriers are fully liable for 
falsification. Carriers should only have to conform to a single set of 
regulations rather than different requirements of different 
requirements at different airports.
    FAA Response: In response to commenters who say they will suffer 
economic hardship if they are required to maintain the employment 
history files for all person granted unescorted access, the FAA has 
modified these requirements in the final rule. When an airport operator 
has accepted an airport user's certification, the airport operator then 
conducts a preliminary review of the investigative files of those 
individuals who are named in the certification. After the preliminary 
review of each employment history file the airport operator may return 
the file to the airport user to maintain as agreed to in the 
certification. Consistent with common business practices, airport users 
have the space, equipment, and the personnel to handle their normal

[[Page 51212]]

employment application paperwork. This rule requires certain 
information be collected for compliance with Part 1 of the 
investigative process. The FAA has viewed examples where the needed 
information is provided in 4 pages or less. Therefore the FAA is 
confident that the airport user will not experience any additional 
burden in maintaining the paperwork required. Providing the airport 
user with the opportunity to maintain Part 1 of the investigative file 
should alleviate anyone's concern about liability. Given the 
requirements of this regulation the required investigative file will 
lack confidential and personal information normally associated with 
employment applications.
    It is true, however, that Part 2 of the employment history 
investigation, when required, will be conducted for the airport users 
entirely by the airport operator. So there may in fact be limited 
filing for the airport operator; however it would be far less than the 
NPRM had proposed.
    Two commenters misunderstood the NPRM to state that the airport 
operators would maintain the files of part 108 air carriers. This is 
not the FAA's intent. The airport operator is not expected to handle 
any air carrier investigative files kept in compliance with this rule. 
The airport operator is only expected to keep the certification offered 
to them by the part 108 air carriers regarding unescorted access 
privileges. There is no expectation that the airport operator will 
conduct a preliminary review of the air carrier investigative files. 
The part 108 air carriers as regulated parties will be responsible for 
all investigative files pertaining to those individuals granted 
unescorted access.
    The final rule also responds to comments concerning foreign air 
carriers. The FAA's policy does not discriminate against foreign air 
carriers. At the present time the FAA has no other means to reach the 
part 129 air carriers other than to view them as airport users and it 
is imperative that the security regulations apply to everyone who has 
access to an airport. Accordingly, the final rule allows more 
flexibility regarding the investigative files and offers relief to the 
part 129 air carriers. The final rule will allow the part 129 air 
carriers to maintain their own employees' files but keeps in place the 
airport's authority to ensure only those individuals who have been 
properly vetted will have access to the airport's SIDA. The final rule 
will eliminate the need for making copies of the individual's 
employment investigative file. The decision is up to the part 129 air 
carrier to offer a certification regarding the completion of an 
employment history investigation on an individual seeking unescorted 
access and at the discretion of the airport operator to accept it. The 
airport operator will conduct the procedures associated with Part 2 
requirements for the part 129 air carriers, as it will do for other 
airport users.
    In response to the comment that there is discrimination against 
foreign air carriers the FAA emphasizes that all investigative files 
are subject to audits by the FAA to ascertain compliance with the 
regulation.
    Another commenter expressed concern about incomplete or rejected 
files. In such instances the airport operator should advise the airport 
user that the paperwork is incomplete so that the airport user and the 
affected individual would then have an opportunity to complete the 
paperwork. The air carriers are reminded that there is not obligation 
for the airport operators to accept certifications. The final rule 
states in Sec. 107.31(n) that the operators are in compliance when they 
accept the certification.
    Practical reasons dictate the employment history investigative 
files for screeners be located at the airport and not the air carriers' 
corporate offices. The main reason centers on logistics. The files need 
to be available to local FAA agents with regulatory responsibility to 
inspect records for compliance. Each location should therefore have an 
air carrier representative named to handle the sensitive issues that 
may arise relative to Part 2 of the employment history investigations.
16. Airport Operator/Air Carrier Responsibilities (Secs. 107.31(o)(1) 
and (2) and 108.33(m)(1) and (2))
    The FAA proposed no changes to the requirement that the airport 
operator designate the airport security coordinator (ASC) responsible 
for reviewing and controlling the results of the employment background 
investigations and for serving as the contact to receive notification 
from individuals of their intent to correct their criminal record. The 
FAA proposed changing Secs. 107.31(g)(1) and (2) to Secs. 107.31(o)(1) 
and (2).
    The FAA proposed a new Sec. 108.33(m). Proposed paragraph (m)(1) 
would require the air carrier to designate an individual at each 
airport to control and maintain the employment background investigation 
files for individuals for whom the air carrier has made a certification 
to the airport operator. Proposed paragraph (m)(2) would require the 
air carrier to designate an individual in its security program to 
control the employment background investigation files of individuals 
for whom the air carrier conducts investigations, including screeners 
and their supervisors.
    Comments received on proposed Secs. 107.31(o)(1) and (2) and 
108.33(m) are as follows:
    ACI-NA and AAAE states that the ASC should be permitted to 
designate other airport security staff or security contractor staff to 
fulfill the ASC role. The commenter states that it is not feasible at 
many airports for one or two individuals to accomplish these tasks and, 
therefore recommends that the words ``or designee'' be inserted after 
``Airport Security Coordinator'' in Sec. 107.31(o)(1) and (2).
    The same commenter states that airport tenants should be regulated 
directly by the FAA rather than laying the entire security enforcement 
responsibility for them upon the airport operators.
    The same commenter adds that the ``legal implications and 
liabilities associated with airport operating municipalities, states or 
other entities becoming involved in the employment practices of private 
companies should be fully explored.''
    Another commenter recommends that part 107 require airlines to 
declare a sponsor for the contractor who would be responsible for the 
background investigations, audits and maintenance of its files.
    Two commenters state that the proposed regulation does not clarify 
who is responsible for ensuring that the background investigations and 
audits are completed for contractors and screening companies who 
service several different airlines at the same airport. According to 
these comments, at many airports the responsibility of contracting with 
a contractor falls on an informal ``consortium'' of multiple carriers, 
or on individual airlines on a rotating basis. The comments suggest 
that the FAA treat screening companies in the same manner as other 
airport tenants by requiring each screening company to provide a 
certification directly to the airport operator.
    A commenter suggests that the regulations include a provision 
permitting the air carriers to review, audit and exercise other 
oversight functions regarding the airport operator's handling of the 
screener background investigations. This would allow the air carriers 
to discharge their responsibility to maintain ultimate control of the 
screening function.
    A commenter recommends that the FAA establish procedures for air 
carriers to notify the FAA of central locations

[[Page 51213]]

where records are maintained; designate the corporate offices which 
maintain the records; the required to make the records available for 
FAA inspection; and be required to audit the employment background 
investigations.
    A commenter raised the issue of the threat of litigation against 
air carriers resulting from disclosure and states that the files must 
be kept in a secure location in the air carrier's human resources 
office.
    A commenter states that storing the background investigation files 
should be the responsibility of the firm conducting the background 
check. Another commenter proposes that the employment background 
investigative records be kept on file by a FAA Central Records Office 
to alleviate complications when a security cleared person changes jobs.
    Another commenter states that, if the FAA decides to establish a 
certification program for screening companies, those companies would be 
permitted to receive criminal history information from the FBI and 
could maintain their own background information files. The commenter 
states that requiring the air carrier to receive personal and 
confidential criminal history information dealing with the employee of 
another company is both unreasonable and unethical.
    One commenter supports the proposal in Sec. 108.33(m) that air 
carriers designate an individual at each airport to maintain and 
control employment background investigation files. Currently employment 
background audit attempts by Air Authority police indicate that records 
are usually maintained at each airline general office and are 
inaccessible or not available for a timely review.
    One commenter states that the rule should be modified to require 
airport operators to accept the air carrier's certification that a 
background check has been performed. Furthermore, with the adoption of 
14 CFR Sec. 108.14 (sic), carriers are fully liable for falsification. 
Carriers should only have to conform to a single set of regulations 
rather than different requirements at different airports.
    FAA Response: In response to the comment about permitting designees 
to fulfill the role of ASC the FAA has already developed a policy for 
the use of designees by ASCs. This policy remains in effect for this 
final rule.
    The FAA is unsure why ACI-NAA and AAAE believe the airport would be 
liable for ``employment practices'' of private companies. The private 
company may, within certain limits, employ anyone it wishes. The 
federal regulations apply to those seeking to perform specific job 
functions. If the individual cannot fulfill a specific job's 
requirements, in compliance with the federal regulation, the company 
may still employ the individual in another capacity. Therefore the 
employability of the individual rests with the private company and not 
the airport operator.
    In addressing the comment about sponsorship the FAA understands 
that some contractors may only seek unescorted access for one carrier 
and for a short duration of time. The FAA's only concern is that one of 
the regulated parties must be responsible for those individuals.
    In response to the two comments regarding the issue of who is 
responsible for airport users the FAA reiterates that the airport 
operators are responsible for the security of the airport. The air 
carriers are responsible for their direct employees and those screening 
companies they hire to perform screening functions. Furthermore, it is 
the airport operators' responsibility to conduct the employment history 
investigations to perform the audits of any contractors other than 
screeners. This regulation allows the airport operator to consider 
contractors as airport users. This regulation likewise allows the 
airport operator to maintain the employment history files of those 
seeking unescorted access if the airport operator so chooses. The FAA 
leaves to the discretion of the airport operator whether or not the air 
carrier should take responsibility for certain contractors, other than 
screeners. The FAA encourages discussion between the airport operators 
and the air carriers regarding other air carrier contractors.
    In response to which air carrier would be responsible for screening 
companies servicing multiple air carriers at one airport the FAA 
suggests that the air carriers use the same local procedures which are 
currently used for other security compliance issues. If there is reason 
to believe the same procedures cannot be used then it is recommended 
that all pertinent parties meet to develop a new procedure which is 
satisfactory to all, just as was done to create the current procedures.
    It is the responsibility of the air carriers that hire screening 
companies to conduct, audit and exercise requisite oversight functions 
of the screening companies. The final rule states these 
responsibilities in Sec. 108.33. Since the part 108 air carriers are 
charged with maintaining employment history investigation files the FAA 
will work closely with them regarding the exact location of the files. 
The FAA wishes to clarify that nothing in this final rule requires or 
authorizes the Airport Authority Police to audit screener employment 
history investigative files.
    One commenter indicated the investigative files should be the 
responsibility of the firm that conducts the background check. The FAA 
will assume this comment concerns those private companies that perform 
pre-employment background checks for airport users. If those companies 
are also performing Part 1 of the employment history investigations for 
this rule they are doing so at the request of the airport users. If the 
airport operator has delegated the conduct of Part 1 of the employment 
history investigation to the airport user, then the user, under 
certification, will maintain the files on behalf of the airport 
operator. This rule does not address any further delegation for the 
maintenance of Part 1 files. If certifications are accepted by the 
airport operator certification requirements must be met. The 
responsibility to delegate or not delegate maintenance of the 
investigative files rests with the airport operator.
    One commenter questioned why the FAA did not provide screening 
companies with the authority to receive criminal records. Screening 
companies are not authorized to have such access by 49 U.S.C. 44936. 
This commenter also believed it was ``unreasonable and unethical'' for 
a carrier to receive confidential criminal record information on 
another company's employee. The FAA does not agree with this comment. 
For a discussion of these issues see sections 6 and 12 of the 
Discussion of Comments.
    It was not the intent of the FAA in the unescorted access rule, nor 
is it the intent of this rule, to require the airport operators to 
review the employment history investigative files of air carrier 
employees seeking unescorted access. The certification process was 
intended to handle the request and granting of unescorted access 
between air carriers and airport operators. However, the FAA will not 
remove the airport operators' prerogative to protect its property. The 
FAA audits and the air carrier's self-audits should supply sufficient 
assurances that compliance with this regulation is being met. The FAA 
encourages airport operators to rely on the air carriers' 
certification.
    The FAA has expanded the air carrier's responsibilities listed in 
Sec. 108.33(m). This paragraph lists the points of contact required for 
notifications and maintenance of Parts 1 and 2 of the employment 
history investigative files for both direct

[[Page 51214]]

employees and screening company employees.
17. Audits of Background Investigations (Secs. 107.31(o)(4) and 
108.33(m)(5))
    Proposed Sec. 107.31(o)(4) would require the airport operator to 
audit the employment background investigations performed in accordance 
with this section, except those employment background investigations of 
air carriers certifying to the airport operator compliance with 
Sec. 108.33(b). Proposed Sec. 108.33(m)(5) would require the air 
carrier to audit the employment background investigations. The audit 
process would be set forth in the air carrier approved security 
program.
    Many comments were received on the audit requirements. Most of the 
comments expressed a concern that entities should be required to audit 
only those investigations concerning their own personnel.
    ATA and ACI-NA and AAAE believe that the FAA should audit airport 
operators, air carriers, and screening companies, once they are FAA 
certificated, independently for compliance with the regulations. 
According to commenters, a FAA audit would ensure that audit procedures 
do not vary among regions and agents.
    Some commenters state that requiring regular audits of all 
background investigations would be time consuming and costly with no 
corresponding increase in security.
    FAA Response: The FAA's intent is to ensure a means of evaluating 
employment history investigations records and to confirm the validity 
and accuracy of the information they contain.
    In addition to the self-audits, required by 49 U.S.C. 
Sec. 44936(a)(3), the FAA will also be conducting audits of airport 
operators, and air carriers. Screening companies will be audited by the 
responsible air carriers. FAA audits when conducted on screening 
companies will be considered as part of an audit on the responsible air 
carrier.
    The FAA has carefully considered all comments on the audit 
requirements. Most of these comments are specific and apply to the 
self-audit procedures that will be set forth in the air carrier and 
airport approved security programs. The FAA will provide an opportunity 
to comment on the specifics of the audit process in accordance with 
Secs. 107.11 and 108.25.
    Section 306 of the Act also directs the FAA to provide for the 
periodic audit of the effectiveness of the criminal records checks. The 
FAA in its oversight capacity has previously conducted audits and will 
continue to conduct audits on employment history investigations. The 
FAA views self-auditing as a valuable tool which can assist the 
regulated party in effective rule implementation. The final rule 
requires air carriers and airport operators to audit their employment 
history investigations. The self-audit requirements apply to both Part 
1 and Part 2 of the employment history investigation.
    This final rule provides, in general terms, information on audits 
to be conducted by regulated parties on employment history 
investigations. The audit functions pertaining to the employment 
history investigations have important security benefits; however, for 
security reasons, the exact auditing procedures cannot be described in 
a public document. Therefore the specific requirements regarding the 
audits will be proposed as amendments to the security programs.
18. General--Cargo and Baggage Operations
    The FAA requested comments on whether to expand the employment 
history investigation requirement to include persons who perform 
security functions related to cargo and baggage outside of the SIDA. In 
general, commenters who responded to the FAA's question opposed such an 
expansion, and several stated that to include such a requirement in a 
final rule would violate the Administrative Procedures Act.
    FAA Response: While Section 304 of the Act provides the 
Administrator with discretionary authority to require employment 
history investigations for other individuals who exercise security 
functions associated with baggage or cargo, the FAA did not propose to 
expand the requirement for such investigations beyond checkpoint 
screeners and their supervisors. As explained in the preamble to the 
proposed rule most air carrier baggage and cargo personnel currently 
have unescorted access to the SIDA and thus are currently subject to 
access investigations.
    If the FAA had received comments supporting the inclusion of those 
who perform security functions outside the SIDA, related to cargo and 
baggage, the FAA would have addressed that concern in a separate NPRM. 
However, comments were insufficient to support the need for an 
additional proposal. Therefore, the FAA has decided not to expand the 
requirement.
19. Summary of Economic Comments
    This section summaries the economic comments and the FAA's 
responses. A detailed discussion of these comments and responses is 
contained in the full regulatory evaluation in the docket for this 
final rule.
    a. Comments related to extending criminal background checks for 
screeners. Two commenters state that the FAA's use of 54 days for the 
length of time to perform fingerprint checks was underestimated. These 
commenters believe that the actual length of time is longer, and should 
be reflected in the costs.
    Two commenters also state that the assumption, based on the 
historical record, that only 0.4% of the applicants would need to be 
fingerprinted and a negligible amount would have a prior criminal 
conviction was inaccurate. These commenters believe, based on personal 
experience, that both estimates should be higher.
    One commenter believes that the estimate of $55 for total staff 
time and supplies is too low, given all that is required.
    Two commenters request that the FAA make clear who is paying the 
cost of fingerprint processing and that the local FAA offices are 
charging the correct rate.
    One commenter, a catering company, does not believe that escorting 
a new hire for more than 30 days is viable. Another commenter, 
representing an airport, says that if the verbiage on criminal history 
background check document forms is changed, there would be increased 
costs due to paperwork changes.
    FAA Response: The FAA cannot consider each airport's turnaround 
time individually, and will continue to use the national average for 
purposes of costing the rule. The FAA agrees that a 54 day processing 
time is too long, but has no means at its disposal to shorten it.
    The rates used, of 0.4% and 0.0%, were based on a review of the 
data on the results of the first eight months of the current 
Secs. 107.31 and 108.33, from February through September 1996. Neither 
commenter submitted any data or documentation showing rates different 
than these, so the FAA will continue to use these rates.
    Much of what the commenter believes should be considered are not 
required; the economic analysis costed out those parts of the proposed 
rule that would add cost.
    Regarding who pays what section of the cost of fingerprinting, the 
FAA is required by Executive Order to look at all costs to society and 
made clear, in its analysis, who would pay what. With regards to the 
cost of the criminal record checks, the FAA does not have control

[[Page 51215]]

over the cost of this process, so everyone needing fingerprinting would 
pay the same standard rate.
    With regards to escorting employees, the FAA believes that 
conditions and requirements would be different for screeners than for 
caterer employees and that the ability for a screener to work 
supervised would be viable past 30 days. There are no document title 
requirements in the Regulations; hence, there would be no requirement 
to change any verbiage on the forms.
    b. Comments related to removing the exemption that substitutes a 
U.S. Customs Service (USCS) background check for a check based on the 
requirements. A trade organization states that some airports report 
that up to 60% of air carrier employee SIDA access media, plus a much 
smaller percent of airport employees, were authorized through 
acceptance of the USCS background check. Accordingly, this change could 
be costly.
    FAA Response: The FAA called for comments on the number of airport 
employees who currently were granted unescorted access due to a 
background check from the USCS. This was the only response, and is too 
vague to help project cost data. There will be no additional costs due 
to removing this exception.
    c. Comments related to the requirement that the airport operators 
and air carriers review the employee background documentation of their 
own employees as well as any appropriate contractors or, in the case of 
airports, airport users. Four commenters state that the requirement for 
specific airport personnel to review the employment history check 
documentation would increase their paperwork requirements, and would 
require hiring of more employees and finding additional storage space.
    There were several comments on the assumption (in the economic 
analyses) that 5% of all employment history investigations would be 
checked. These commenters believe that the FAA underestimated total 
costs, in part due to a belief that the actual amount checked would be 
greater than 5% as airports would want to check employees and avoid 
potential liability problems.
    One commenter contends that the costs associated with collecting 
and filing records should be in the cost analysis, but are not.
    FAA Response: The final rule will allow for the option that the 
airport user could hold the required paperwork for their employees; 
this would relieve the airport operator from having to maintain, 
collect, and process the entire employment background investigation 
file for each employee. Hence, airports will not need to hire 
additional personnel or find additional storage space to handle these 
files.
    It is possible that the audit rate could be higher than 5% for some 
airports; the FAA used an estimated 5% as an average for all airports 
and calculated costs accordingly. This 5% applies to all persons with 
unescorted access who had been subject to an employment background 
check, and not all persons with unescorted access on file. There would 
be no potential liability responsibility should an incident occur since 
airport operators are not fully responsible for the compliance of the 
airport user.
    The airport user or the airport would be filing these papers in 
their file cabinets anyway, so there would be no additional cost.
    d. Comments related to the FAA's NPRM economic analysis. A trade 
organization claims that it is difficult to know for certain what 
variables were included in the economic analysis, particularly as they 
refer to the costs of the employment verification process for 
screeners. This same organization states that the assumed annual growth 
rate and salaries for screeners are far too low given the intent to add 
new explosive detection technologies at airports.
    An airport commenter is concerned that the FAA's costs did not 
include the additional costs airports must incur to fulfill Sec. 107.31 
costs.
    FAA Response: FAA's economic analysis makes it very clear what 
administrative costs are included, taking into account two hours of a 
paperwork/clerk specialist and one third of an hour of airport or air 
carrier supervisor designee. The FAA agrees that the advanced skills 
required for explosives detection technology will mean higher salaries 
and an increase in the overall demand for and career development growth 
rate of these screeners vis-a-vis other screeners. This information is 
included in the data used to calculate the costs of this rule.
    All costs connected with Sec. 107.31 were captured in the analysis 
of the final rule for Unescorted Access Privilege (60 FR 51854) that 
went into effect on January 31, 1996. This rule seeks to cover 
individuals not covered by Sec. 107.31, and so the costs for this rule 
are separate.

Economic Summary

    Proposed and final rule changes to Federal regulations must undergo 
several economic analyses. First, Executive Order 12866 directs that 
each Federal agency shall propose or adopt a regulation only upon a 
reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980 
requires agencies to analyze the economic effect of regulatory changes 
on small entities. Third, the Office of Management and Budget directs 
agencies to assess the effect of regulatory changes on international 
trade. In conducting these analyses, the Federal Aviation 
Administration (FAA) has determined that the final rule would generate 
benefits that justify its costs and is not ``a significant regulatory 
action'' as defined in the Executive Order or Department of 
Transportation Regulatory Policies and Procedures. The rule will not 
have a significant impact on a substantial number of small entities and 
will not constitute a barrier to international trade. In addition, this 
rule does not contain any Federal intergovernmental mandates, but does 
contain a private sector mandate. However, because expenditures by the 
private sector will not exceed $100 million annually, the requirements 
of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

Cost of Compliance

    The FAA has performed an analysis of the expected costs and 
benefits of this regulation. In this analysis, the FAA estimated costs 
for a 10-year period, from 1999 through 2008. As required by the Office 
of Management and Budget (OMB), the present value of this stream was 
calculated using a discount factor of 7 percent. All costs in this 
analysis are in 1997 dollars.
    The FAA estimates that in 1999, there will be 15,600 screeners and 
screener supervisors affected by this rule, comprised of 1,400 
checkpoint security supervisors (CSS), 100 shift supervisors, and 
14,100 screeners. The analysis assumes loaded hourly wages (i.e., with 
fringe benefits) of $6.25 for screeners, $7.31 for CSS's, and $11.00 
for shift supervisors. Industry sources report, on average, annual 
turnovers of 110% for all screeners, 85% for CSS's, and 20% for shift 
supervisors. This turnover rate, of course, will vary by airport and 
location. Given the difficulty of discerning the actual turnover rates 
at individual airports, the FAA has opted to use these turnover rates 
for the entire industry. In addition, the FAA assumes that the number 
of screeners will grow at an annual rate of 1.5%.
    There are three cost components that need to be considered. These 
involve the fee for processing fingerprints; the time for a paperwork/
clerk specialist to take the fingerprints, do the requisite paperwork, 
and mail the forms; and the need for this employee to be supervised.

[[Page 51216]]

    Currently, a fingerprint check takes, on average, 54 days to be 
processed. During this time period, this particular employee, if hired, 
will need to be supervised. This employee's productivity will be low 
for he or she will not be able to exercise any independent judgment; 
all screened baggage will also need to be checked by this employee's 
supervisor, and this employee will not be able to do tasks such as 
using the metal detector or hand wand, or perform a physical search. On 
the other hand, at times, this employee might be doing tasks that do 
not need 100% attention from a supervisor. Accordingly, the FAA will 
use a 15% productivity rate in this analysis.
    The alternative will be to delay hiring the employee until the 
results of the fingerprint check come back. Given the high turnover 
rate of screeners, there is a good likelihood at many locations that 
this person can then be hired based on another job opening.
    The FAA examined the cost of both of these alternatives. The lower 
cost alternative will be to delay hiring this person until the 
fingerprint check results return; in such a situation, the only costs 
will be the costs of fingerprinting the employee. The higher cost 
alternative will be to hire this person, have this person supervised, 
and pay them even though their productivity will be low. Screeners will 
be supervised by another screener, at a total cost of about $1,925 per 
hire for the 54 day period. CSS's will be supervised by another CSS, at 
a total cost of about $2,250 per hire for the 54 day period.
    The current processing fee for a fingerprint investigation is $28; 
the FAA has been paying the difference between that and the current 
published fee of $24. Under this final rule, employers and/or employees 
will pay the entire cost (with employees proscribed from handling the 
fingerprint cards), while the FAA will no longer pay the $4 difference. 
Hence these incremental changes cancel each other out.
    Since January 31, 1996, all applicants for specific jobs requiring 
unescorted access have been subject to a criminal background history 
check; the FAA collected data on the results of the first eight months 
of these applicants. Of the applications that were processed, 0.4% of 
applicants needed to be fingerprinted. In addition, almost none had a 
prior criminal conviction which disqualified them. In the absence of 
other information, the FAA will use these percentages (0.4% and 0.0%, 
respectively) in estimating the costs of this final rule. Due to both 
the growth rate in screeners and the annual turnover rates, the FAA 
estimates that the ten-year costs for the criminal history background 
check portion of this final rule will range from $38,800 (net present 
value, $33,300) to $1.16 million (net present value, $804,100), again, 
the latter cost including the cost of supervision.
    The FAA, in removing the USCS exemption in Sec. 107.31(m), has made 
it clear that those individuals who were granted unescorted access 
based on the Customs background check prior to the effective date of 
this rule will be grandfathered. Hence, no employee who received 
unescorted access based on a background check from USCS will have to 
undergo a new check, and there will be no costs associated with the 
removal of this exception.
    This amendment will add a new requirement that will require the 
airport operators and air carriers to review the employment background 
documentation of their own employees as well as any appropriate 
contractors or, in the case of airports, airport users. They will need 
to develop and carry out processes by which they will examine the 
accuracy and completeness of the employment background investigations 
being accomplished on all of all listed parties.
    The actual percentage to be audited may vary by airport and air 
carrier and will be included in each's security program. The FAA 
assumes that, on average, 5 percent of all employment background 
investigations will be checked. The average check will involve a 
paperwork/clerk specialist going through the employee's application and 
checking to make sure that all items were accurate. The FAA estimates 
that the average investigation will cost approximately $58.
    Based on the number of employees at airports with unescorted access 
privileges, specific employee growth rates, and annual attrition rates, 
the FAA calculates ten year costs for the airports to be $3.96 million 
(net present value, $2.72 million). Meanwhile, the air carriers will 
need to run checks on the screeners and screener supervisors that are 
hired during this time period. The ten-year costs for the air carriers 
sum to $524,700 (net present value, $365,500).
    The ten-year cost of this rule will range from $4.53 million (net 
present value, $3.12 million) to $5.64 million (net present value, 
$3.89 million).

Analysis of Benefits

    The purpose of this final rule is to enhance aviation security. The 
primary benefit of the rule will be increased protection to Americans 
and others traveling on U.S. domestic air carrier flights from acts of 
terrorism. The changes envisioned in this rule are an integral part of 
the total program needed by the airports, air carriers, and the FAA to 
prevent a criminal or terrorist incident in the future.
    Since the mid-1980's, the major goals of aviation security have 
been to prevent bombing and sabotage incidents. Preventing an explosive 
or incendiary device from getting on board an airplane is one of the 
major lines of defense against an aviation-related criminal or 
terrorist act. The individuals covered by this final rule play a major 
role in preventing such occurrences. It is essential that potential 
employees that may have criminal records or questionable backgrounds be 
investigated, and, if certain conditions are met, denied the 
opportunity to conduct security-related activities. Such individuals 
could definitely be a threat to aviation security.
    In 1996, both Congress and the White House Commission on Aviation 
Safety and Security recommended further specific actions to increase 
aviation security. The Commission stated that it believes that the 
threat against civil aviation is changing and growing, and recommended 
that the federal government commit greater resources to improving 
aviation security. President Clinton, in July 1996, declared that the 
threat of both foreign and domestic terrorism to aviation is a national 
threat. The U.S. Congress recognized this growing threat in the Federal 
Aviation Reauthorization Act of 1996 by: (1) authorizing money for the 
purchase of specific anti-terrorist equipment and the hiring of extra 
security personnel; and (2) requiring the FAA to promulgate additional 
security-related regulations including this current rulemaking action.
    The cost of a catastrophic terrorist act can be estimated in terms 
of lives lost, property damage, decreased public utilization of air 
transportation, etc. The most deadly and expensive example of the type 
of event that aviation security is trying to prevent is the Pan Am 103 
tragedy over Lockerbie, Scotland. Since the benefits of this rule will 
apply primarily to domestic flights, which are flown primarily by 
narrow-bodied airplanes, rather than international flights, which are 
flown primarily by wide-bodied airplanes, the FAA examined the costs 
associated with this catastrophe as they will apply to a domestic 
tragedy. A conservative estimate of these costs is $832.4 million. This 
high cost underscores the consequences of not taking prudent security-
related steps.
    Some benefits can be quantified--prevention of fatalities and 
injuries and

[[Page 51217]]

the loss of aircraft and other property. Other benefits are no less 
important, but are probably impossible to quantify--the perception of 
improved security on the part of the traveling public, and general 
gains for the U.S. attributable to the commitment to enhance aviation 
security.

Comparison of Costs and Benefits

    The ten-year cost of this rule would range from $4.53 million (net 
present value, $3.12 million) to $5.64 million (net present value, 
$3.89 million). This cost needs to be compared to the possible tragedy 
that could occur if a bomb or some other incendiary device were to get 
onto an airplane and cause an explosion. Recent history not only points 
to Pan Am 103's explosion over Lockerbie, Scotland, but also the 
potential of up to twelve American airplanes being blown up in Asia in 
early 1995. While the specific points in this regulation may not, by 
themselves, have been factors in the occurrence of Pan Am 103 or the 
prevention of the culmination of the conspiracy in Asia, these 
potential devastating costs emphasize the consequences of not taking 
sensible security-related steps.
    Congress has mandated that the FAA promulgate these regulations. 
Congress, which reflects the will of the American public, has 
determined that this regulation is in the best interest of the nation. 
Because this regulation reflects the will of the American people, and 
because its cost is low compared to the potential catastrophe of a 
single bomb explosion on an airplane, the FAA finds this rule cost-
beneficial.

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 establishes ``as a principle 
of regulatory issuance that agencies shall endeavor, consistent with 
the objective of the rule and of applicable statutes, to fit regulatory 
and informational requirements to the scale of the business, 
organizations, and governmental jurisdictions subject to regulation.'' 
To achieve that principle, the Act requires agencies to solicit and 
consider flexible regulatory proposals and to explain the rationale for 
their actions. The Act covers a wide-range of small entities, including 
small businesses, not-for-profit organizations and small governmental 
jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis (RFA) as 
described in the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 act provides that 
the head of the agency may so certify and an RFA is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.

Security Screening Companies

    This rule will affect companies that perform security screening as 
well as specific airports. There are currently 58 companies that 
provide security screening services; 32 of these are small entities. To 
estimate the annual cost impact for each screening company, the FAA 
calculated what the maximum annual cost of the regulations will be per 
screener over the time period examined by this analysis, $11.66, and 
multiplied by the number of screeners that that company has. Based on 
these calculations, the FAA concludes that the costs are ``de minimus'' 
on all but four small entities; the highest cost for these four small 
entities is $5,000.

Airports

    The airports covered by this rule are those that are regularly 
served by scheduled passenger aircraft operations having airplanes with 
a passenger seating configuration of greater than 60 seats, are subject 
to screening programs defined in the current Sec. 108.5, and are 
required to have an Airport Security Program (ASP) under the current 
Sec. 107.3(b). There are 74 such airports that have over 2 million 
people screened per year and 185 such airports that have less than 2 
million people screened per year.
    Part 107 affects airports classified under Standard Industrial 
Classification (SIC) 4582. The SBA's small entity size standards 
criterion define a small airport as one owned by a county, city, town 
or other jurisdiction having a population of 49,999 or less. If two or 
more towns, cities, or counties operate an airport jointly, the 
population size of each are totaled to determine whether that airport 
is small. In addition, all privately owned, public-use airports are 
considered small.
    The most recent population data for cities, counties, and states is 
taken from the 1990 Census and this was used to determine the 
population of the appropriate jurisdiction. Thirty-seven of the 259 
airports that meet the above definition are owned by jurisdictions with 
populations less than 50,000. Each of these has less than 2 million 
person screenings per year. As discussed above, an average of 554 
employees have unescorted access privileges at each of these airports 
at the end of 1996. The average one year cost for any such airport is 
$215.

Conclusion

    The FAA conducted the required review of this amendment and 
determined that it will not have a significant economic impact on a 
substantial number of small entities. Accordingly, pursuant to the 
Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal Aviation 
Administration certifies that this rule will not have a significant 
impact on a substantial number of small entities.

International Trade Impact Statement

    In accordance with the Office of Management and Budget memorandum 
dated March 1983, federal agencies engaged in rulemaking activities are 
required to assess the effects of regulatory changes on international 
trade. Since both domestic and international air carriers use 
screeners, this final rule change will have an equal effect on both. 
Unlike domestic air carriers that compete with foreign air carriers, 
domestic airports are not in competition with foreign airports. For 
this reason, a trade impact assessment is not be applicable for 
domestic airports.

Unfunded Mandates Determination

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a ``significant intergovernmental mandate.'' A 
``significant intergovernmental mandate'' under the Act is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section 
204(a), provides that before establishing any regulatory

[[Page 51218]]

requirements that might significantly or uniquely affect small 
governments, the agency shall have developed a plan that, among other 
things, provides for notice to potentially affected small governments, 
if any, and for a meaningful and timely opportunity to provide input in 
the development of regulatory proposals.
    This final rule does not contain any Federal intergovernmental 
mandates or private sector mandates.

Federalism Implications

    These regulations do not have substantial direct effects on the 
states, or on the relationship, or distribution of power and 
responsibilities, between the Federal Government and the states. Thus, 
in accordance with the federalism principles and policymaking criteria 
of Executive Order 13083, this agency has determined that no federalism 
implications exist necessitating a Federalism Consultation.

International Civil Aviation Organization (ICAO) and Joint Aviation 
Regulations

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with ICAO 
Standards and Recommended Practices to the maximum extent practicable. 
The FAA finds no corresponding International Civil Aviation 
Organization regulations or Joint Aviation Regulations; therefore, no 
differences exist.

Paperwork Reduction Act

    Under the requirements of the Paperwork Reduction Act of 1995, the 
Office of Management and Budget has approved the information collection 
burden for this rule and assigned it OMB Approval Number 2120-0628.

List of Subjects in 14 CFR Parts 107 and 108

    Air carriers, Air transportation, Airlines, Airplane operator 
security, Aviation safety, Reporting and recordkeeping requirements, 
Security measures, Transportation, Weapons.

The Amendments

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

PART 107--AIRPORT SECURITY

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

    Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702, 
44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105, 
Sec. 306, Pub. L. 104-264, 110 Stat. 3213.

    2. Section 107.31 is revised to read as follows:


Sec. 107.31  Employment history, verification and criminal history 
records checks.

    (a) Scope. On or after January 31, 1996, this section applies to 
all airport operators; airport users; individuals currently having 
unescorted access to a security identification display area (SIDA) that 
is identified by Sec. 107.25; all individuals seeking authorization 
for, or seeking the authority to authorize others to have, unescorted 
access to the SIDA; and each airport user and air carrier making a 
certification to an airport operator pursuant to paragraph (n) of this 
section. An airport user, for the purposes of Sec. 107.31 only, is any 
person making a certification under this section other than an air 
carrier subject to Sec. 108.33.
    (b) Employment history investigations required. Except as provided 
in paragraph (m) of this section, each airport operator must ensure 
that no individual is granted authorization for, or is granted 
authority to authorize others to have, unescorted access to the SIDA 
unless the following requirements are met:
    (1) The individual has satisfactorily undergone Part 1 of an 
employment history investigation. Part 1 consists of a review of the 
previous 10 years of employment history and verification of the 5 
employment years preceding the date the appropriate investigation is 
initiated as provided in paragraph (c) of this section; and
    (2) If required by paragraph (c)(5) of this section, the individual 
has satisfied Part 2 of the employment history investigation. Part 2 is 
the process to determine if the individual has a criminal record. To 
satisfy Part 2 of the investigation the criminal record check must not 
disclose that the individual has been convicted or found not guilty by 
reason of insanity, in any jurisdiction, during the 10 years ending on 
the date of such investigation, of any of the crimes listed below:
    (i) Forgery of certificates, false marking of aircraft, and other 
aircraft registration violation, 49 U.S.C. 46306;
    (ii) Interference with air navigation, 49 U.S.C. 46308;
    (iii) Improper transportation of a hazardous material, 49 U.S.C. 
46312;
    (iv) Aircraft piracy, 49 U.S.C. 46502;
    (v) Interference with flightcrew members or flight attendants, 49 
U.S.C. 46504;
    (vi) Commission of certain crimes aboard aircraft in flight, 49 
U.S.C. 46506;
    (vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C. 
46505;
    (viii) Conveying false information and threats, 49 U.S.C. 46507;
    (ix) Aircraft piracy outside the special aircraft jurisdiction of 
the United States, 49 U.S.C. 46502(b);
    (x) Lighting violations involving transporting controlled 
substances, 49 U.S.C. 46315;
    (xi) Unlawful entry into an aircraft or airport area that serves 
air carriers or foreign air carriers contrary to established security 
requirements, 49 U.S.C. 46314;
    (xii) Destruction of an aircraft or aircraft facility, 18 U.S.C. 
32;
    (xiii) Murder;
    (xiv) Assault with intent to murder;
    (xv) Espionage;
    (xvi) Sedition;
    (xvii) Kidnapping or hostage taking;
    (xviii) Treason;
    (xix) Rape or aggravated sexual abuse;
    (xx) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon;
    (xxi) Extortion;
    (xxii) Armed robbery;
    (xxiii) Distribution of, or intent to distribute, a controlled 
substance;
    (xxiv) Felony arson; or
    (xxv) Conspiracy or attempt to commit any of the aforementioned 
criminal acts.
    (c) Investigative steps. Part 1 of the employment history 
investigation must be competed on all persons listed in paragraph (a) 
of this section. If required by paragraph (c)(5) of this section, Part 
2 of the employment history investigation must also be completed on all 
persons listed in paragraph (a) of this section.
    (1) The individual must provide the following information on an 
application form:
    (i) The individual's full name, including any aliases or nicknames.
    (ii) The dates, names, phone numbers, and addresses of previous 
employers, with explanations for any gaps in employment of more than 12 
consecutive months, during the previous 10-year period.
    (iii) Any convictions during the previous 10-year period of the 
crimes listed in paragraph (b)(2) of this section.
    (2) The airport operator or the airport user must include on the 
application form a notification that the individual will be subject to 
an employment history verification and possibly a criminal records 
check.
    (3) The airport operator or the airport user must verify the 
identity of the individual through the presentation of two forms of 
identification, one of which must bear the individual's photograph.

[[Page 51219]]

    (4) The airport operator or the airport user must verify the 
information on the most recent 5 years of employment history required 
under paragraph (c)(1)(ii) of this section. Information must be 
verified in writing, by documentation, by telephone, or in person.
    (5) If one or more of the conditions (triggers) listed in 
Sec. 107.31(c)(5)(i) through (iv) exist, the employment history 
investigation must not be considered complete unless Part 2 is 
accomplished. Only the airport operator may initiate Part 2 for airport 
users under this section. Part 2 consists of a comparison of the 
individual's fingerprints against the fingerprint files of known 
criminals maintained by the Federal Bureau of Investigation (FBI). The 
comparison of the individual's fingerprints must be processed through 
the FAA. The airport operator may request a check of the individual's 
fingerprint-based criminal record only if one or more of the following 
conditions exist:
    (i) The individual does not satisfactorily account for a period of 
unemployment of 12 consecutive months or more during the previous 10-
year period.
    (ii) The individual is unable to support statements made on the 
application form.
    (iii) There are significant inconsistencies in the information 
provided on the application.
    (iv) Information becomes available to the airport operator or the 
airport user during the investigation indicating a possible conviction 
for one of the crimes listed in paragraph (b)(2) of this section.
    (d) Individual notification. Prior to commencing the criminal 
records check, the airport operator must notify the affected individual 
and identify the Airport Security Coordinator as a contact for follow-
up. An individual, who chooses not to submit fingerprints, after having 
met a requirement for Part 2 of the employment investigation, may not 
be granted unescorted access privilege.
    (e) Fingerprint processing. If a fingerprint comparison is 
necessary under paragraph (c)(5) of this section to complete the 
employment history investigation the airport operator must collect and 
process fingerprints in the following manner:
    (1) One set of legible and classifiable fingerprints must be 
recorded on fingerprint cards approved by the FBI, and distributed by 
the FAA for this purpose.
    (2) The fingerprints must be obtained from the individual under 
direct observation by the airport operator or a law enforcement 
officer. Individuals submitting their fingerprints may not take 
possession of their fingerprint card after they have been 
fingerprinted.
    (3) The identity of the individual must be verified at the time 
fingerprints are obtained. The individual must present two forms of 
identification, one of which must bear the individual's photograph.
    (4) The fingerprint card must be forwarded to the FAA at the 
location specified by the Administrator.
    (5) Fees for the processing of the criminal record checks are due 
upon application. Airport operators must submit payment through 
corporate check, cashier's check, or money order made payable to ``U.S. 
FAA,'' at the designated rate for each fingerprint card. Combined 
payment for multiple applications is acceptable. The designated rate 
for processing the fingerprint cards is available from the local FAA 
security office.
    (f) Determinaiton of arrest status. In conducting the criminal 
record checks required by this section, the airport operator must not 
consider the employment history investigation complete unless it 
investigates arrest information for the crimes listed in paragraph 
(b)(2) of this section for which no disposition has been recorded and 
makes a determination that the arrest did not result in a disqualifying 
conviction.
    (g) Availability and correction of FBI records and notification of 
disqualification. (1) At the time Part 2 is initiated and the 
fingerprints are collected, the airport operator must notify the 
individual that a copy of the criminal record received from the FBI 
will be made available to the individual if requested in writing. When 
requested in writing, the airport operator must make available to the 
individual a copy of any criminal record received from the FBI.
    (2) Prior to making a final decision to deny authorization to an 
individual described in paragraph (a) of this section, the airport 
operator must advise the individual that the FBI criminal record 
discloses information that would disqualify him/her from receiving 
unescorted access and provide the individual with a copy of the FBI 
record if it has been requested.
    (3) The airport operator must notify an individual that a final 
decision has been made to grant or deny authority for unescorted 
access.
    (h) Corrective action by the individual. The individual may contact 
the local jurisdiction responsible for the information and the FBI to 
complete or correct the information contained in his/her record before 
any final decision is made, subject to the following conditions:
    (1) Within 30 days after being advised that the criminal record 
received from the FBI discloses disqualifying information, the 
individual must notify the airport operator, in writing, of his/her 
intent to correct any information believed to be inaccurate.
    (i) Upon notification by an individual that the record has been 
corrected, the airport operator must obtain a copy of the revised FBI 
record prior to making a final determination.
    (2) If not notification is received within 30 days, the airport 
operator may make a final determination.
    (i) Limits on dissemination of results. Criminal record information 
provided by the FBI must be used solely for the purposes of this 
section, and no person may disseminate the results of a criminal record 
check to anyone other than:
    (1) The individual to whom the record pertains or that individual's 
authorized representative;
    (2) Airport officials with a need to know; and
    (3) Others designated by the Administrator.
    (j) Employment status while awaiting criminal record checks. 
Individuals who have submitted their fingerprints and are awaiting FBI 
results may perform work within the SIDA when under escort by someone 
who has unescorted SIDA access privileges.
    (k) Recordkeeping. (1) Except when the airport operator has 
received a certification under paragraph (n)(1) of this section, the 
airport operator must physically maintain and control the Part 1 
employment history investigation file until 180 days after the 
termination of the individual's authority for unescorted access. The 
Part 1, employment history investigation file, must consist of the 
following:
    (i) The application;
    (ii) The employment verification information obtained by the 
employer;
    (iii) The names of those from whom the employment verification 
information was obtained;
    (iv) The date and the method of how the contact was made; and
    (v) Any other information as required by the Administrator.
    (2) The airport operator must physically maintain, control and when 
appropriate destroy Part 2, the criminal record, for each individual 
for whom a fingerprint comparison has been completed. Part 2 must be 
maintained for 180 days after the termination of the individual's 
authority for unescorted access. Only direct airport operator

[[Page 51220]]

employees may carry out this criminal record file responsibility. The 
Part 2 criminal record file must consist of the following:
    (i) The criminal record received from the FBI as a result of an 
individual's fingerprint comparison; or
    (ii) Information that the check was completed and no record exists.
    (3) The files required by this section must be maintained in a 
manner that is acceptable to the Administrator and in a manner that 
protects the confidentiality of the individual.
    (l) Continuing responsibilities. (1) Any individual authorized to 
have unescorted access privileges or who may authorize others to have 
unescorted access, who is subsequently convicted of any of the crimes 
listed in paragraph (b)(2) of this section must, within 24 hours, 
report the conviction to the airport operator and surrender the SIDA 
access medium to the issuer.
    (2) If information becomes available to the airport operator or the 
airport user indicating that an individual with unescorted access has a 
possible conviction for one of the disqualifying crimes in paragraph 
(b)(2) of this section, the airport operator must determine the status 
of the conviction. If a disqualifying conviction is confirmed the 
airport operator must withdraw any authority granted under this 
section.
    (m) Exceptions. Notwithstanding the requirements of this section, 
an airport operator may authorize the following individuals to have 
unescorted access, or to authorize others to have unescorted access to 
the SIDA:
    (1) An employee of the Federal government or a state or local 
government (including a law enforcement officer) who, as a condition of 
employment, has been subjected to an employment investigation which 
includes a criminal record check.
    (2) A crewmember of a foreign air carrier covered by an alternate 
security arrangement in the foreign air carrier's approved security 
program.
    (3) An individual who has been continuously employed in a position 
requiring unescorted access by another airport operator, airport user 
or air carrier.
    (4) Those persons who have received access to a U.S. Customs 
secured area prior to November 23, 1998.
    (n) Investigations by air carriers and airport users. An airport 
operator is in compliance with its obligation under paragraph (b) of 
this section, as applicable, when the airport operator accepts for each 
individual seeking unescorted access one of the following:
    (1) Certification from an air carrier subject to Sec. 108.33 of 
this chapter indicating it has complied with Secs. 108.33 of this 
chapter for the air carrier's employees and contractors seeking 
unescorted access; or
    (2) Certification from an airport user indicating it has complied 
with and will continue to comply with the provisions listed in 
paragraph (p) of this section. The certification must include the name 
of each individual for whom the airport user has conducted an 
employment history investigation.
    (o) Airport operator responsibility. The airport operator must:
    (1) Prior to the acceptance of a certification from the airport 
user, the airport operator must conduct a preliminary review of the 
file for each individual listed on the certification to determine that 
Part 1 has been completed.
    (2) Designate the airport security coordinator (ASC), in the 
security program, to be responsible for reviewing the results of the 
airport employees' and airport users' employment history investigations 
and for destroying the criminal record files when their maintenance is 
no longer required by paragraph (k)(2) of this section;
    (3) Designate the ASC, in the security program, to serve as the 
contact to receive notification from individuals applying for 
unescorted access of their intent to seek correction of their FBI 
criminal record; and
    (4) Audit the employment history investigations performed by the 
airport operator in accordance with this section and those 
investigations conducted by the airport users made by certification 
under paragraph (n)(2). The audit program must be set forth in the 
airport security program.
    (p) Airport user responsibility.
    (1) The airport user is responsible for reporting to the airport 
operator information, as it becomes available, which indicates an 
individual with unescorted access may have a conviction for one of the 
disqualifying crimes in paragraph (b)(2) of this section; and
    (2) If the airport user offers certification to the airport 
operator under paragraph (n)(2) of this section, the airport user must 
for each individual for whom a certification is made:
    (i) Conduct the employment history investigation, Part 1, in 
compliance with paragraph (c) of this section. The airport user must 
report to the airport operator if one of the conditions in paragraph 
(C)(5) of this section exist;
    (ii) Maintain and control Part 1 of the employment history 
investigation file in compliance with paragraph (k) of this section, 
unless the airport operator decides to maintain and control Part 1 of 
the employment history investigation file;
    (iii) Provide the airport operator and the FAA with access to each 
completed Part 1 employee history investigative file of those 
individuals listed on the certification; and
    (iv) Provide either the name or title of the individual acting as 
custodian of the files, and the address of the location and the phone 
number at the location where the investigative files are maintained.

PART 108--AIRPLANE OPERATOR SECURITY

    3. The authority citation for part 108 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702, 
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.

    4. Section 108.33 is revised to read as follows:


Sec. 108.33  Employment history, verification and criminal history 
records checks.

    (a) Scope. The following persons are within the scope of this 
section:
    (1) Each employee or contractor employee covered under a 
certification made to an airport operator, pursuant to Sec. 107.31(n) 
of this chapter, made on or after November 23, 1998.
    (2) Each individual issued air carrier identification media that 
one or more airports accepts as airport approved media for unescorted 
access within a security identification display area (SIDA) as 
described in Sec. 107.25 of this chapter.
    (3) Each individual assigned, after November 23, 1998, to perform 
the following functions:
    (i) Screen passengers or property that will be carried in a cabin 
of an aircraft of an air carrier required to screen passengers under 
this part.
    (ii) Serve as an immediate supervisor (checkpoint security 
supervisor (CSS)), or the next supervisory level (shift or site 
supervisor), to those individuals described in paragraph (a)(3)(i) of 
this section.
    (b) Employment history investigations required. Each air carrier 
must ensure that, for each individual described in paragraph (a) of 
this section, the following requirements are met:
    (1) The individual has satisfactorily undergone Part 1 of an 
employment history investigation. Part 1 consists of a review of the 
previous 10 years of employment history and verifications of the 5 
employment years preceding the date the employment history 
investigation is initiated as provided in paragraph (c) of this 
section; and

[[Page 51221]]

    (2) If required by paragraph (c)(5) of this section, the individual 
has satisfied Part 2 of the employment history investigation. Part 2 is 
the process to determine if the individual has a criminal record. To 
satisfy Part 2 of the investigation the criminal records check must not 
disclose that the individual has been convicted or found not guilty by 
reason of insanity, in any jurisdiction, during the 10 years ending on 
the date of such investigation, of any of the crimes listed below:
    (i) Forgery of certificates, false marking of aircraft, and other 
aircraft registration violation, 49 U.S.C. 46306;
    (ii) Interference with air navigation, 49 U.S.C. 46308;
    (iii) Improper transportation of a hazardous material, 49 U.S.C. 
46312;
    (iv) Aircraft piracy, 49 U.S.C. 46502;
    (v) Interference with flightcrew members or flight attendants, 49 
U.S.C. 46504;
    (vi) Commission of certain crimes aboard aircraft in flight, 49 
U.S.C. 46506;
    (vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C. 
46505;
    (viii) Conveying false information and threats, 49 U.S.C. 46507;
    (ix) Aircraft piracy outside the special aircraft jurisdiction of 
the United States, 49 U.S.C. 46502(b);
    (x) Lighting violations involving transporting controlled 
substances, 49 U.S.C. 46315;
    (xi) Unlawful entry into an aircraft or airport area that serves 
air carriers or foreign air carriers contrary to established security 
requirements, 49 U.S.C. 46314;
    (xii) Destruction of an aircraft or aircraft facility, 18 U.S.C. 
32;
    (xiii) Murder;
    (xiv) Assault with intent to murder;
    (xv) Espionage;
    (xvi) Sedition;
    (xvii) Kidnapping or hostage taking;
    (xviii) Treason;
    (xix) Rape or aggravated sexual abuse;
    (xx) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon;
    (xxi) Extortion;
    (xxii) Armed robbery;
    (xxiii) Distribution of, or intent to distribute, a controlled 
substance;
    (xxiv) Felony arson; or
    (xxv) Conspiracy or attempt to commit any of the aforementioned 
criminal acts.
    (c) Investigative steps. Part 1 of the employment history 
investigations must be completed on all persons described in paragraph 
(a) of this section. If required by paragraph (c)(5) of this section, 
Part 2 of the employment history investigation must also be completed 
on all persons listed in paragraph (a) of this section.
    (1) The individual must provide the following information on an 
application:
    (i) The individual's full name, including any aliases or nicknames;
    (ii) The dates, names, phone numbers, and addresses of previous 
employers, with explanations for any gaps in employment of more than 12 
consecutive months, during the previous 10-year period;
    (iii) Any convictions during the previous 10-year period of the 
crimes listed in paragraph (b)(2) of this section.
    (2) The air carrier must include on the application form a 
notification that the individual will be subject to an employment 
history verification and possibly a criminal records check.
    (3) The air carrier must verify the identity of the individual 
through the presentation of two forms of identification, one of which 
must bear the individual's photograph.
    (4) The air carrier must verify the information on the most recent 
5 years of employment history required under paragraph (c)(1)(ii) of 
this section. Information must be verified in writing, by 
documentation, by telephone, or in person.
    (5) If one or more of the conditions (triggers) listed in 
Sec. 108.33(c)(5) (i) through (iv) exist, the employment history 
investigation must not be considered complete unless Part 2 is 
accomplished. Only the air carrier may initiate Part 2. Part 2 consists 
of a comparison of the individual's fingerprints against the 
fingerprint files of known criminals maintained by the Federal Bureau 
of Investigation (FBI). The comparison of the individual's fingerprints 
must be processed through the FAA. The air carrier may request a check 
of the individual's fingerprint-based criminal record only if one or 
more of the following conditions exist:
    (i) The individual does not satisfactorily account for a period of 
unemployment of 12 consecutive months or more during the previous 10-
year period.
    (ii) The individual is unable to support statements made on the 
application form.
    (iii) There are significant inconsistencies in the information 
provided on the application.
    (iv) Information becomes available to the air carrier during the 
investigation indicating a possible conviction for one of the crimes 
listed in paragraph (b)(2) of this section.
    (d) Individual notification. Prior to commencing the criminal 
records check, the air carrier must notify the affected individuals and 
identify a point of contact for follow-up. An individual who chooses 
not to submit fingerprints may not be granted unescorted access 
privilege and may not be allowed to hold screener or screener 
supervisory positions.
    (e) Fingerprint processing. If a fingerprint comparison is 
necessary under paragraph (c)(5) of this section to complete the 
employment history investigation the air carrier must collect and 
process fingerprints in the following manner:
    (1) One set of legible and classifiable fingerprints must be 
recorded on fingerprint cards approved by the FBI and distributed by 
the FAA for this purpose.
    (2) The fingerprints must be obtained from the individual under 
direct observation by the air carrier or a law enforcement officer. 
Individuals submitting their fingerprints must not take possession of 
their fingerprint card after they have been fingerprinted.
    (3) The identify of the individual must be verified at the time 
fingerprints are obtained. The individual must present two forms of 
identification, one of which must bear the individual's photograph.
    (4) The fingerprint card must be forwarded to FAA at the location 
specified by the Administrator.
    (5) Fees for the processing of the criminal records checks are due 
upon application. Air carriers must submit payment through corporate 
check, cashier's check, or money order made payable to ``U.S. FAA,'' at 
the designated rate for each fingerprint card. Combined payment for 
multiple applications is acceptable. The designated rate for processing 
the fingerprint cards is available from the local FAA security office.
    (f) Determination of arrest status. In conducting the criminal 
record checks required by this section, the air carrier must not 
consider the employment history investigation complete unless it 
investigates arrest information for the crimes listed in paragraph 
(b)(2) of this section for which no disposition has been recorded and 
makes a determination that the arrest did not result in a disqualifying 
conviction.
    (g) Availability and correction of FBI records and notification of 
disqualification. (1) At the time Part 2 is initiated and the 
fingerprints are collected, the air carrier must notify the individual 
that a copy of the criminal record received from the FBI will be made 
available to the individual if requested in writing. When requested in 
writing, the air carrier must make

[[Page 51222]]

available to the individual a copy of any criminal record received from 
the FBI.
    (2) Prior to making a final decision to deny authorization to an 
individual described in paragraph (a) of this section, the air carrier 
must advise the individual that the FBI criminal record discloses 
information that would disqualify him/her from positions covered under 
this rule and provide him/her with a copy of their FBI record if 
requested.
    (3) The air carrier must notify an individual that a final decision 
has been made to forward or not forward a letter of certification for 
unescorted access to the airport operator, or to grant or deny the 
individual authority to perform screening functions listed under 
paragraph (a)(3) of this section.
     (h) Corrective action by the individual. The individual may 
contact the local jurisdiction responsible for the information and the 
FBI to complete or correct the information contained in his/her record 
before the air carrier makes any decision to withhold his/her name from 
a certification, or not grant authorization to perform screening 
functions subject to the following conditions:
    (1) Within 30 days after being advised that the criminal record 
received from the FBI discloses disqualifying information, the 
individual must notify the air carrier, in writing, of his/her intent 
to correct any information believed to be inaccurate.
    (2) Upon notification by an individual that the record has been 
corrected, the air carrier must obtain a copy of the revised FBI record 
prior to making a final determination.
    (3) If no notification is received within 30 days, the air carrier 
may make a final determination.
    (i) Limits on dissemination of results. Criminal record information 
provided by the FBI must be used solely for the purposes of this 
section, and no person may disseminate the results of a criminal record 
check to anyone other than:
    (1) The individual to whom the record pertains or that individual's 
authorized representative;
    (2) Air carrier officials with a need to know; and
    (3) Others designated by the Administrator.
    (j) Employment status while awaiting criminal record checks. 
Individuals who have submitted their fingerprints and are awaiting FBI 
results may perform work details under the following conditions:
    (1) Those seeking unescorted access to the SIDA must be escorted by 
someone who has unescorted SIDA access privileges;
    (2) Those applicants seeking positions covered under paragraphs 
(a)(3) and (d)(4) of this section, may not exercise any independent 
judgments regarding those functions.
    (k) Recordkeeping. (1) The air carrier must physically maintain and 
control Part 1 employment history investigation file until 180 days 
after the termination of the individual's authority for unescorted 
access or termination from positions covered under paragraph (a)(3) of 
this section. Part 1 of the employment history investigation, completed 
on screening personnel must be maintained at the airport where they 
perform screening functions. Part 1 of the employment history 
investigation file must consist of the following:
    (i) The application;
    (ii) The employment verification information obtained by the 
employer;
    (iii) the names of those from whom the employment verification 
information was obtained;
    (iv) The date and the method of how the contact was made; and
    (v) Any other information as required by the Administrator.
    (2) The air carrier must physically maintain, control and when 
appropriate destroy Part 2, the criminal record file, for each 
individual for whom a fingerprint comparison has been made. Part 2 must 
be maintained for 180 days after the termination of the individual's 
authority for unescorted access or after the individual ceases to 
perform screening functions. Only direct air carrier employees may 
carry out Part 2 responsibilities. Part 2 must consist of the 
following:
    (i) The results of the record check; or
    (ii) Certification from the air carrier that the check was 
completed and did not uncover a disqualifying conviction.
    (3) The files required by this paragraph must be maintained in a 
manner that is acceptable to the Administrator and in a manner that 
protects the confidentiality of the individual.
    (l) Continuing responsibilities. (1) Any individual authorized to 
have unescorted access privilege to the SIDA or who performs functions 
covered under paragraph (a)(3) of this section, who is subsequently 
convicted of any of the crimes listed in paragraph (b)(2) of this 
section must, within 24 hours, report the conviction to the air carrier 
and surrender the SIDA access medium or any employment related 
identification medium to the issuer.
    (2) If information becomes available to the air carrier indicating 
that an individual has a possible conviction for one of the 
disqualifying crimes in paragraph (b)(2) of this section, the air 
carrier must determine the status of the conviction and, if the 
conviction is confirmed:
    (i) Immediately revoke access authorization for unescorted access 
to the SIDA; or
    (ii) Immediately remove the individual from screening functions 
covered under paragraph (a)(3) of this section.
    (m) Air carrier responsibility. The air carrier must:
    (1) Designate an individual(s), in the security program, to be 
responsible for maintaining and controlling the employment history 
investigation for those whom the air carrier has made a certification 
to an airport operator under Sec. 107.31(n)(1) of this chapter and for 
destroying the criminal record files when their maintenance is no 
longer required by paragraph (k)(2) of this section.
    (2) Designate individual(s), in the security program, to maintain 
and control Part 1 of the employment history investigations of 
screeners whose files must be maintained at the location or station 
where the screener is performing his or her duties.
    (3) Designate individual(s), in the security program, to serve as 
the contact to receive notification from an individual applying for 
either unescorted access or those seeking to perform screening 
functions of his or her intent to seek correction of his or her 
criminal record with the FBI.
    (4) Designate an individual(s), in the security program, to 
maintain and control Part 2 of the employment history investigation 
file for all employees, contractors, or others who undergo a 
fingerprint comparison at the request of the air carrier.
    (5) Audit the employment history investigations performed in 
accordance with this section. The audit process must be set forth in 
the air carrier approved security program.

    Issued in Washington, DC on September 16, 1998.
Jane F. Garvey,
Administrator.
[FR Doc. 98-25210 Filed 9-23-98; 8:45 am]
BILLING CODE 4910-13-M