[Federal Register Volume 65, Number 3 (Wednesday, January 5, 2000)]
[Proposed Rules]
[Pages 560-611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16]
[[Page 559]]
Part II
Department of Transportation
_______________________________________________________________________
Federal Aviation Administration
_______________________________________________________________________
14 CFR Parts 108, 109, 111, 129, and 191
Certification of Screening Companies; Proposed Rule
Federal Register / Vol. 65, No. 3 / Wednesday, January 5, 2000 /
Proposed Rules
[[Page 560]]
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Parts 108, 109, 111, 129, and 191
[Docket No. FAA-1999-6673; Notice No. 99-21]
RIN 2120-AG84
Certification of Screening Companies
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: This document proposes to require that all companies that
perform aviation security screening be certificated by the FAA and meet
enhanced requirements. This proposal is in response to a recommendation
by the White House Commission on Aviation Safety and Security and to a
Congressional mandate in the Federal Aviation Reauthorization Act of
1996. The proposal is intended to improve the screening of passengers,
accessible property, checked baggage, and cargo and to provide
standards for consistent high performance and increased screening
company accountability.
DATES: Comments must be received on or before April 4, 2000.
ADDRESSES: Comments on this document should be mailed or delivered, in
duplicate, to: U.S. Department of Transportation Dockets, Docket No.
FAA-1999-6673, 400 Seventh Street SW., Room Plaza 401, Washington, DC
20590. Comments may be filed and examined in Room Plaza 401 between 10
a.m. and 5 p.m. weekdays, except Federal holidays. Comments also may be
sent electronically to the Dockets Management System (DMS) at the
following Internet address: http://dms.dot.gov/ at any time. Commenters
who wish to file comments electronically should follow the instructions
on the DMS web site.
FOR FURTHER INFORMATION CONTACT: Karl Shrum, Manager, Civil Aviation
Security Division, Office of Civil Aviation Security Policy and
Planning (ACP-100), Federal Aviation Administration, 800 Independence
Avenue, SW., Washington, DC 20591, telephone (202)267-3946.
SUPPLEMENTARY INFORMATION:
Comments Invited
Interested persons are invited to participate in the making of the
proposed action by submitting such written data, views, or arguments as
they may desire. Comments relating to the environmental, energy,
federalism, or economic impact that might result from adopting the
proposals in this document are also invited. Substantive comments
should be accompanied by cost estimates. Comments must identify the
regulatory docket or notice number and be submitted in duplicate to the
DOT Rules Docket address specified above.
All comments received, as well as a report summarizing each
substantive public contact with FAA personnel concerning this proposed
rulemaking, will be filed in the docket. The docket is available for
public inspection before and after the comment closing date. All
comments received on or before the closing date will be considered by
the Administrator before taking action on this proposed rulemaking.
Comments filed late will be considered as far as possible without
incurring expense or delay. The proposals in this document may be
changed in light of the comments received.
Comments received on this proposal will be available both before
and after the closing date for comments in the Rules Docket for
examination by interested persons. However, the Assistant Administrator
for Civil Aviation Security has determined that the security programs
required by parts 108, 109, and 129 contain sensitive security
information. As such, the availability of information pertaining to
these security programs is governed by 14 CFR part 191. Carriers,
screening companies, and others who wish to comment on this document
should be cautious not to include in their comments any information
contained in any security program.
Commenters wishing the FAA to acknowledge receipt of their comments
submitted in response to this document must include a pre-addressed,
stamped postcard with those comments on which the following statement
is made: ``Comments to Docket No. FAA-1999-6673.'' The postcard will be
date stamped and mailed to the commenter.
To give the public an additional opportunity to comment on the
NPRM, the FAA anticipates planning public meetings. If the FAA
determines that it is appropriate to hold such meetings, a separate
notice announcing the times, locations, and procedures for public
meetings will be published in the Federal Register.
Availability of NPRMs
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: (703)
321-3339) or the Government Printing Office (GPO)'s electronic bulletin
board service (telephone: (202) 512-1661).
Internet users may reach the FAA's web page at http://www.faa.gov/
avr/arm/nprm/nprm.htm, or the GPO's web page at http://
www.access.gpo.gov/nara for access to recently published rulemaking
documents.
Any person may obtain a copy of this document by submitting a
request to the Federal Aviation Administration, Office of Rulemaking,
ARM-1, 800 Independence Avenue, SW., Washington, DC 20591, or by
calling (202) 267-9680. Communications must identify the notice number
or docket number of this NPRM.
Persons interested in being placed on the mailing list for future
rulemaking documents should request from the above office a copy of
Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution
System, which describes the application procedure.
Outline of Preamble
I. Introduction
A. Current Requirements.
B. History.
C. Aviation Security Screening.
D. The Advance Notice of Proposed Rulemaking (ANPRM).
E. Related Rulemakings.
II. The Proposal: Overview
A. Summary.
B. Certification of All Who Perform Screening.
C. Roles of Carriers and Screening Companies.
D. Compliance and Enforcement Issues.
E. New Part 111.
F. Screening of Cargo.
G. Screening Standard Security Program (SSSP).
H. Screener Qualifications.
I. Performance Measurements and Standards.
III. Proposed Part 111: Section-by-Section Discussion
Subpart A--General
A. 111.1 Applicability.
B. 111.3 Definitions.
C. 111.5 Inspection authority.
D. 111.7 Falsification.
E. 111.9 Prohibition against interference with screening personnel.
Subpart B--Security Program, Certificate, and Operations Specifications
F. 111.101 Performance of screening.
G. 111.103; 111.105; and 111.107 Security programs.
H. 111.109 Screening company certificate.
I. 111.111; 111.113; and 111.115 Operations specifications
J. 111.117 Oversight by air carriers, foreign air carriers, or
indirect air carriers.
K. 111.119 Business office.
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Subpart C--Operations
L. 111.201 Screening of persons and property and acceptance of
cargo.
M. 111.203 Use of screening equipment.
N. 111.205 Employment standards for screening personnel.
O. 111.207 Disclosure of sensitive security information.
P. 111.209 Screening company management.
Q. 111.211 Screening company instructor qualifications.
R. 111.213 Training and knowledge of persons with screening-related
duties.
S. 111.215 Training tests: requirements.
T. 111.217 Training tests: cheating and other unauthorized conduct.
U. 111.219 Screener letter of completion of training.
V. 111.221 Screener and supervisor training records.
W. 111.223 Automated performance measurement and standards.
IV. Proposed Revisions to Parts 108, 109, and 129
A. 108.201(h); 109.203(a); and 129.25(k) Certification requirement.
B. 108.5 and 109.5 Inspection authority.
C. 108.103(b); 109.103(b); and 129.25(c) Security program form,
content, and availability.
D. 109.105 and 129.25(e) Approvals and amendments of security
programs.
E. 108.201(i), (j), and (k); 109.203(b), (c), and (d); and
129.25(l), (m), and (n) Responsibilities of carriers and screening
companies.
F. 108.201(l) and 129.25(o) Public notification regarding
additional security measures.
G. 108.205; 109.207; and 129.26 Use of X-ray systems.
H. 108.207 and 129.28 Use of explosives detection systems.
I. 108.229, 109.205, and 129.25(p) Monitoring of screener training
tests.
J. Additional proposed requirements to parts 108, 109, and 129.
V. Proposed Revisions to Part 191
A. Protection of sensitive security information (SSI).
B. 191.1 Applicability and definitions.
C. 191.5 Records and information protected by others.
D. 191.7 Description of SSI.
VI. Paperwork Reduction Act
VII. Compatibility With ICAO Standards
VIII. Regulatory Analyses
A. Regulatory evaluation summary.
B. Initial regulatory flexibility determination.
C. International trade impact statement.
D. Unfunded mandates.
E. Federalism implications.
I. Introduction
I.A. Current Requirements
The Administrator is required to prescribe regulations to protect
passengers and property on aircraft operating in air transportation or
intrastate air transportation against acts of criminal violence or
aircraft piracy. Such protections include searches of persons and
property that will be carried aboard an aircraft to ensure that they
have no unlawful dangerous weapons, explosives, or other destructive
substances (49 U.S.C. 44901-44903). Screening of all passengers and
property that will be carried in a cabin of an aircraft in air
transportation or intrastate air transportation must be done before the
aircraft is boarded, using weapon-detecting facilities or procedures
used or operated by employees or agents of the air carriers, intrastate
air carriers, or foreign air carriers (49 U.S.C. 44901).
Part 108 of Title 14, Code of Federal Regulations, contains rules
in Secs. 108.9, 108.17, and 108.20 for air carrier screening
operations. These rules, which are available to the general public,
provide basic standards for the screeners, equipment, and procedures to
be used. In addition, each air carrier required to conduct screening
has a nonpublic security program (required under current Secs. 108.5
and 108.7) that contains detailed requirements for screening of
persons, accessible property, checked baggage, and cargo. All air
carriers subject to part 108 have adopted the Air Carrier Standard
Security Program (ACSSP). The ACSSP provides identical measures for air
carriers. Individual air carriers may request alternate procedures in
specific situations if the required level of security can be
maintained.
Part 109 of Title 14, Code of Federal Regulations (14 CFR),
contains rules in Sec. 109.3 for conducting security procedures by
indirect air carriers. An indirect air carrier is any person or entity
within the United States, not in possession of an FAA air carrier
operating certificate, that undertakes to engage indirectly in the air
transportation of property, and uses, for all or any part of such
transportation, the services of a passenger air carrier. This does not
include the U.S. Postal Service (USPS) or its representative while
acting on behalf of the USPS. This definition does include freight
forwarders and air couriers. Each indirect air carrier has a nonpublic
security program (Sec. 109.5) that contains detailed requirements for
screening cargo. All indirect air carriers adopt the Indirect Air
Carrier Standard Security Program (IACSSP). The IACSSP provides
identical measures for indirect air carriers. IACSSP requirements are
essentially the same as the requirements in the ACSSP for screening
cargo.
Part 129 of Title 14, Code of Federal Regulations, contains rules
in Secs. 129.25, 129.26, and 129.27 for foreign air carrier screening.
Each foreign air carrier conducting screening has a nonpublic security
program (Sec. 129.25) that contains detailed requirements for screening
persons, accessible property, checked baggage, and cargo. All foreign
air carriers conducting operations in the United States are subject to
part 129 and have adopted the Model Security Program (MSP) for their
security programs in the United States. The MSP provides identical
measures for foreign air carriers. MSP requirements applicable within
the United States are essentially the same as the requirements in the
ACSSP.
Throughout this notice, air carriers, indirect air carriers, and
foreign air carriers are collectively referred to as ``carriers.''
There are several means by which a carrier can conduct screening.
It can use its own employees. It can contract with another company to
conduct the screening in accordance with the carrier's security
program. It can contract with another carrier to conduct screening. In
each case, the carrier is required to provide oversight to ensure that
all FAA requirements are met.
I.B. History
Since 1985, at least 10 major international terrorist incidents
involving aviation have occurred worldwide, including the bombing of
Pan Am flight 103 on December 21, 1988, which killed 243 passengers, 16
crewmembers, and 11 people on the ground. While all of the attacks
against U.S. civil aviation in this period have taken place abroad, the
link between the February 1993 World Trade Center bombing and the
January 1995 plot to bomb several U.S. airliners in the Far East
suggests that civil aviation in the United States may have become a
more attractive target for terrorist attacks. Ramzi Ahmed Yousef was
convicted (along with different sets of co-conspirators) for his roles
in both plots as well as for the bombing of Philippine Airlines flight
434 in December 1994. Had Yousef's plot to bomb U.S. airliners
succeeded, hundreds if not thousands of passengers would almost
certainly have been killed.
These incidents have demonstrated the capabilities and intentions
of international terrorists to attack the United States and its
citizens as well as the ability of such terrorists to operate in the
United States. The threat posed by foreign terrorists in the United
States remains a serious concern, and the FAA believes that the threat
will continue for the foreseeable future.
The threat of terrorist acts against aircraft has led to several
actions by the United States Government to strengthen
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aviation security. These actions include two Presidential commissions,
the Aviation Security Improvement Act of 1990, the Federal Aviation
Reauthorization Act of 1996, and several FAA rulemakings to improve
security measures at airports. The action proposed in this notice
therefore is part of a broad, continuing effort to increase aviation
security.
Following the tragic crash of TWA flight 800 on July 17, 1996, the
President created the White House Commission on Aviation Safety and
Security (the White House Commission). The White House Commission
issued an initial report on September 9, 1996, with 20 specific
recommendations for improving security. One recommendation was for the
development of uniform performance standards for the selection,
training, certification, and recertification of screening companies and
their employees. The final report, issued on February 12, 1997,
reiterated this recommendation.
Before the crash of TWA flight 800, the FAA had become concerned as
well that there was a need to reevaluate the overall level of civil
aviation security. The FAA asked the Aviation Security Advisory
Committee (ASAC) to review the threat assessment of foreign terrorism
within the United States, consider the warning and interdiction
capabilities of intelligence and law enforcement, examine the
vulnerabilities of the domestic civil aviation system, and consider the
potential consequences of a successful attack. The ASAC, which consists
of representatives from the FAA and other Federal agencies, the
aviation industry, and public interest groups, formed a subgroup called
the Baseline Working Group (BWG) on July 17, 1996, to evaluate the
domestic aviation security ``baseline'' in light of the new threat
environment. The BWG released its Domestic Security Baseline Final
Report on December 12, 1996. The report presented multiple
recommendations for improving aviation security through certifications
of screeners and screening companies, rapid deployments of available
technologies, and institutional and procedural changes in the U.S.
aviation security system.
On October 9, 1996, the President signed the Federal Aviation
Reauthorization Act of 1996, Public Law 104-264. Section 302 (49 U.S.C.
44935 note) states:
The Administrator of the Federal Aviation Administration is
directed to certify companies providing security screening and to
improve the training and testing of security screeners through
development of uniform performance standards for providing security
screening services.
I.C. Aviation Security Screening
Effective aviation security screening is critical to protecting
passengers in air transportation against acts of criminal violence and
aircraft piracy. It is the front line of defense against potential acts
of aviation terrorism. It is therefore imperative that airports,
carriers, screening companies, and the FAA work together to strengthen
continually the aviation security screening system.
The FAA first required domestic passenger screening in 1973 in
response to increasing numbers of hijackings. The focus at that time
was to detect weapons, such as handguns and knives, through the use of
X-ray and metal detector technologies at security checkpoints. The
introduction of screening greatly reduced hijackings in the United
States. Since then, the greater challenge to security has been the
prevention of aircraft bombings, a challenge that became particularly
urgent in the 1980's as various terrorist elements succeeded in
bringing down aircraft and causing mass casualties by means of on-board
bombs. Some of the bombs used against aircraft have been crude devices,
easily detectable by screeners utilizing X-ray machines, but the trend
has been toward smaller improvised explosive devices (IED's) and
plastic explosives that are more difficult to detect without explosives
detection systems (EDS). The threat of IED's has also expanded the
initial scope of screening from passengers and carry-on baggage only to
include checked baggage and cargo.
The FAA has conducted extensive research regarding how the United
States can best counter these evolving threats. The research has
centered around both technologies and human factors issues; each is
important to thorough, effective screening and poses unique challenges.
The traditional X-ray and metal detector technologies have been
supplemented since the mid-1990's with several new advanced screening
technologies. An advanced screening technology, as that term is used
here, is any technology that is capable of automatic threat
identification. These advanced screening technologies include
explosives detection systems, explosive trace detectors (ETD), and
advanced technology (AT) X-ray-based machines for automatic bulk
explosives detection, some of which employ screener assist
technologies. At this time EDS-type technologies certified by the FAA
apply medical computed axial tomography (CAT) scan technology, but
other types of technologies also may meet EDS criteria in the future.
The EDS are used to screen checked baggage and have the ability to
automatically detect threat types and quantities of bulk explosives at
FAA-specified detection and false alarm rates, up to the initial system
alarm and without human intervention. The AT systems also focus on
detecting bulk explosives in checked baggage and have automatic alarm
capabilities; however, AT systems do not meet the full EDS standards
required by the FAA for all categories of explosives, amounts,
detection rates, and false alarm rates. The AT's still have more
sophisticated detection capabilities than the standard X-ray systems
used for imaging only. The ETD's also detect explosives, but differ in
that they are used to analyze and detect minute amounts of explosive
residues or vapors, are much smaller in size and less costly than the
EDS's and AT's, and are primarily used at screening checkpoints to
screen items entering sterile areas.
The FAA currently is deploying several types of advanced screening
technologies in the Nation's airports. Each advanced screening
technology is capable of detecting specific items. The FAA believes
that the most effective approach to screening at this time is to use a
combination of these technologies at screening locations.
Some of the technologies being developed focus on the human element
of screening. The FAA currently is developing and deploying computer
based training (CBT) and threat image projection (TIP) systems that
provide initial and recurrent training and monitor screener
performance. The potential benefits of CBT are self-paced learning,
enhanced opportunities for realistic practice, combined training and
performance testing, and instruction that is uniform throughout the
country. CBT currently is being used to train screeners in many of the
Nation's busiest airports, and the FAA is evaluating its effectiveness
at these locations. The FAA anticipates making CBT available for use by
all of the carriers but does not anticipate requiring its use at this
time. Some private companies also are developing CBT systems that may
earn FAA acceptance and the FAA encourages this development.
TIP also has significant potential benefits and is a critical
component of this proposed rule. TIP systems currently are being
deployed and tested on both X-ray and explosives detection systems. The
TIP systems use two different methods of projection--fictional threat
image (FTI) and
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combined technology image (CTI). FTI superimposes a threat image from
an extensive library of images onto the X-ray image of actual passenger
baggage being screened. The image appears on the monitor as if a threat
object actually exists within the passenger's bag. The screener can
check whether the image is an actual threat image before requesting
that the bag be screened further. The CTI is a prefabricated image of
an entire threat bag and also can be electronically inserted onto a
display monitor. For both types of images, screeners are immediately
provided with feedback on their ability to detect each threat. TIP
exposes screeners to threats on a regular basis to train them to become
more adept at detecting threats and to enhance their vigilance. TIP
allows the FAA to expose screeners to the latest potential threats and
should allow the FAA and the industry to determine what elements make a
screener more effective, such as training methods and experience
levels. Future TIP data may affect requirements proposed in the
security programs.
The FAA also is validating a series of screener selection tests to
help screening companies identify applicants who may have natural
aptitudes to be effective screeners. Currently, the cognitive skills
and processes for optimal detection of threat objects are poorly
understood. The FAA sees an immediate need to identify valid tests to
select job applicants who should be able to become successful
screeners. The FAA currently is administering several screener
selection tests to groups of screener trainees as part of their CBT and
then measuring their subsequent job performance using TIP. If valid
selection tests are developed, the FAA may offer them to carriers and
screening companies for optional use but does not anticipate requiring
their use at this time.
The FAA will continue its human factors research. Although the new
technologies described are highly effective in detecting explosives,
the FAA realizes that each one is ultimately dependent on the human
operator. Screeners are critical to the screening process. Future human
factors research will focus on the attributes, skills, and abilities
that make for an effective screener. Such elements may include an
individual's cognitive ability, learned skills, education level,
quality and amount of training, and experience (i.e., time on the job).
Screener pay levels and the quality of supervision may also affect
screener performance (i.e., threat detection rates). Analyzing TIP data
will help the FAA to explore and confirm or refute many hypotheses
regarding the factors that affect screener performance.
What is known currently is that each type of screening and
screening technology is unique and requires different skills and
abilities. For example, monitoring a walk-through metal detector
requires a limited understanding of the technology involved and does
not involve image interpretations. Conversely, operating an EDS is much
more complex and requires operators to exercise independent judgment as
they interpret and make decisions regarding images that are all
distinctly different. The screening tasks described in these examples
require different types of skills and abilities and require training
designed to optimize performance for those particular tasks. The FAA's
human factors research will attempt to isolate these skills and
abilities and determine how they can best be recognized and developed.
With regard to compensation, wages for screeners in the United States
currently average $5.75 per hour and some screeners do not receive
fringe benefits. Average annual screener turnover rates exceed 100
percent in many locations. Screeners repeatedly state that low wages
and minimal benefits, along with infrequent supervisor feedback and
frustrating working conditions, cause them to seek employment
elsewhere.
Experience in other countries seems to indicate that higher
compensation, more training, and frequent testing of their screeners
may result in lower turnover rates and more effective screener
performance. The FAA has reports from many sources that screening,
particularly screening of checked baggage, is conducted more
effectively in many other countries than it is in the United States.
U.S. citizens traveling abroad also have expressed concern that
screening in the United States appears to be less thorough than it is
in other countries. While the FAA until recently did not have actual
performance data from other countries to substantiate these views, it
now has test results that are strongly indicative of better screener
performance by some European authorities than by some U.S. screening
operators. The test results were derived from joint testing of
screeners that the FAA conducted with a European country. FAA special
agents and government personnel from the European country tested
screeners in each country using the same methods. On average, screeners
in the European country were able to detect more than twice as many
test objects as screeners in the United States. Screeners in the
European country receive significantly more training and higher
salaries than screeners in the United States and receive comprehensive
benefits. Screeners in the European country also have more screening
experience on average than their United States counterparts. U.S. air
carriers and screening companies may want to pursue any and all of
these factors to achieve higher performance. The FAA will continue to
conduct research and examine operational data to determine how these
factors affect screener performance and retention, both domestically
and in conjunction with foreign governments.
It is clear that the United States can improve upon practices in
many of these human factors areas making its aviation screening
operations as strong and effective as its other aviation operations and
endeavors. Several issues related to human factors in screening, such
as performance and the environment in which screeners work, are
addressed in this NPRM. The FAA invites comments and supporting data
regarding human factors issues such as the potential affects of
increased wages, benefits, experience, and training on screener
performance.
I.D. The Advance Notice of Proposed Rulemaking (ANPRM)
In response to the Congressional mandate and to the White House
Commission report, the FAA published an ANPRM on March 17, 1997 (62 FR
12724), requesting comments on certification of companies providing
security screening. The FAA received 20 comments from the public on the
ANPRM, all of which were substantive.
Subsequent to the publication of the ANPRM, the FAA began field
testing threat image projection systems and evaluating their potential
for measuring screener performance. The FAA determined that the TIP
systems would be integral to proposing requirements for performance
measurements and standards. Therefore, the FAA published an ANPRM
withdrawal notice on May 13, 1998 (63 FR 26706), to allow TIP to be
adequately field tested and validated before the FAA proceeded with the
rulemaking. Although the ANPRM was withdrawn, the FAA considered and
incorporated many of the commenters' suggestions in this proposal. The
following is a brief summary of the overall comments.
While commenters disagreed on several issues, including the level
of oversight responsibility that air carriers should have over
certificated screening companies, commenters generally agreed that
national standards for security screening operations are
[[Page 564]]
needed. Approximately one-third of the commenters stated that
certificating individual screeners would have a greater impact on
improving security than certificating screening companies. Most of
these commenters also stated that certificating individual screeners
would improve screener professionalism and performance.
Approximately half of the commenters agreed that air carriers
conducting screening operations should be subject to the same standards
as certificated screening companies. A majority of commenters stated
that the same screening operation requirements that apply to U.S.
carriers should apply to foreign carriers providing services in this
country. Several commenters disagreed with any proposal by the FAA to
regulate joint-use checkpoints and checkpoint operational
configurations. More detailed discussions of the issues raised by
commenters are provided throughout the proposed rule section of this
preamble.
I.E. Related Rulemakings
On August 1, 1997, the FAA published two NPRM's. Notice No. 97-12
(62 FR 41730) proposes to revise 14 CFR part 108 to update the overall
regulatory structure for air carrier security. Notice No. 97-13 (62 FR
41760) proposes to revise 14 CFR part 107 to update the overall
regulatory structure for airport security. Notice No. 97-12 and notice
No. 97-13 are the result of several years of work by the FAA, airports
and air carriers, and the Aviation Security Advisory Committee (ASAC),
a committee formed under the Federal Advisory Committee Act (5 U.S.C.,
appendix II) in April 1989 by the Secretary of Transportation.
This document proposes to amend the proposed rule language of part
108 in Notice No. 97-12 rather than the current part 108. The numbering
system for part 108 of this NPRM is based on the numbering system for
Notice No. 97-12. The numbering systems for proposed part 111 and
revised part 109 are also closely aligned with the Notice No. 97-12
numbering system for clarity and consistency.
II. The Proposal: Overview
This document has two objectives: to propose procedures for
certification of screening companies; and to propose other requirements
to improve screening, such as performance measurements and new training
and FAA testing requirements for screeners. The FAA believes that this
proposal would improve performance, improve the consistency and quality
of screening, and meet the congressional mandate stated in the Federal
Aviation Reauthorization Act of 1996 and the intent of the White House
Commission recommendations.
This overview contains a summary of the basic framework of the
proposed rule for certification of screening companies. It also
contains more detailed discussions of some of the approaches to
regulating screening that are implemented in the proposals and the
FAA's reasons for using these approaches.
II.A. Summary
The major proposals contained in part 111 and the changes and
additions proposed to parts 108, 109, and 129 are as follows:
(1) The proposed rule would require certification of all screening
companies that inspect persons or property for the presence of any
unauthorized explosive, incendiary, or deadly or dangerous weapon in
the United States on behalf of air carriers, indirect air carriers, or
foreign air carriers required to adopt and carry out FAA-approved
security programs (proposed Secs. 111.1 and 111.109(a)).
(2) The certification requirement would include all persons
conducting screening within the United States under parts 108, 109, and
129. An air carrier, indirect air carrier, or foreign air carrier that
performs screening for itself or for other carriers would have to
obtain a screening company certificate (proposed Secs. 108.201(h),
109.203(a), and 129.25(k)).
(3) The proposed rule would provide for provisional certificates
for new screening companies and screening companies already performing
screening at the time of publication of the final rule. Before the end
of the provisional period, screening companies would apply for
screening company certificates, that would be valid for 5 years
(proposed Sec. 111.109(d) and (e)).
(4) Responsibility for the performance of a screening company would
be borne by the screening company and the relevant air carrier(s),
indirect air carrier(s), or foreign air carrier(s). Carrier oversight
would be required (proposed Secs. 111.117; 108.103(b); 108.201(i) and
(j); 109.103(b); 109.203(b) and (c); and 129.25(c), (l), and (m)).
(5) The proposed rule would require approvals of operations
specifications that would include locations of screening sites; types
of screening; equipment and methods used to screen; and screener
training curricula (proposed Secs. 111.113 and 111.115).
(6) The proposed rule would require that screening companies adopt
and implement FAA-approved screening company security programs that
would include procedures to perform screening functions, including
operating equipment; screener testing standards and test administration
requirements; threat image projection standards, operating
requirements, and data collection methods; and performance standards
(proposed Secs. 111.103, 111.105, and 111.107).
(7) The proposed rule would set forth requirements for screening
companies regarding the screening of persons and property and the use
of screening equipment (proposed Secs. 111.201 and 111.203).
(8) The proposed rule would add requirements for the use of X-ray
systems to part 109 and for the use of explosives detection systems to
part 129 (proposed Secs. 109.207 and 129.28).
(9) The proposed rule would provide consolidated employment
standards for all screening company personnel, including new training
requirements for screeners regarding courteous and efficient screening
and U.S. civil rights laws and for supervisors regarding leadership and
management subjects (proposed Sec. 111.205).
(10) The proposed rule would require that screening companies have
qualified management and technical personnel (proposed Sec. 111.209).
(11) The proposed rule would require that screening instructors
meet minimum experience and training standards (proposed Sec. 111.211).
(12) The proposed rule would specify training requirements for
screening companies regarding training programs and knowledge of
subject areas and would require that the training programs be submitted
to the FAA for approval (proposed Sec. 111.213).
(13) The proposed rule would require that all screening personnel
pass computerized FAA knowledge-based and X-ray interpretation tests
before and after their on-the-job training and at the conclusion of
their recurrent training and that the tests be monitored by carrier
personnel in accordance with the carriers' security programs. The
proposed rule would also describe and prohibit specific instances of
cheating and other unauthorized conduct (proposed Secs. 111.215,
111.217, 108.229, 109.205, and 129.25(p)).
(14) The proposed rule would require that all carriers install
threat image projection (TIP) systems on their X-ray systems and that
all air carriers and foreign air carriers install TIP systems on their
explosives detection systems unless otherwise authorized by the
Administrator. Screening companies would be required to use the TIP
systems as specified in their security
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programs, including collecting and analyzing the TIP data, and to meet
the performance measurements and standards set forth in their security
programs (proposed Secs. 108.205 and 108.207; 129.26 and 129.28;
109.207; and 111.223).
(15) The proposed rule would prohibit interference with screening
personnel in the course of their screening duties (proposed
Sec. 111.9).
In addition to the above proposed changes, the proposal would amend
part 191 to extend SSI requirements to certificated screening companies
and their employees.
The FAA is not proposing to require certifications for individual
screeners, as some commenters to the ANPRM recommended. The FAA does
not have the statutory authority under Title 49 or the Federal Aviation
Reauthorization Act of 1996 to require such certification. Other
requirements in this proposal would help to improve the professionalism
of screeners; e.g., by providing for mobility of screener records
(proposed Sec. 111.221) and by requiring letters of completion to be
issued to screeners and screener supervisors upon their successful
completion of initial, recurrent, and specialized courses of training
(proposed Sec. 111.219).
The FAA has also decided not to specifically address joint-use
screening locations in this rulemaking, although comments were invited
with respect to this issue in the ANPRM. A joint-use screening location
is a security location that is screening for multiple carriers. The FAA
received several comments to the ANPRM that stated that an agreement
should be required for all air carriers to sign with the managing air
carrier of a screening location. However, other commenters stated that
the concept of joint-use screening locations is an internal management
tool of the air carriers that allows flexibility. These commenters
believe that it is not appropriate for the FAA to place undue
restraints on the management process for joint-use screening locations.
After considering the ANPRM comments and reviewing representative
samples of joint-use screening location agreements, the FAA has
determined that rulemaking is not the best way to address these issues.
They would be better addressed in future security program amendments
and/or compliance and enforcement policies.
II.B. Certification of All Who Perform Screening
This proposal would require that all companies that perform
screening be certificated under part 111, even if they are air
carriers, foreign air carriers, or indirect air carriers. This approach
is consistent with several comments to the ANPRM that stated that air
carriers conducting screening should be subject to the same standards
as certificated screening companies.
Certifying all screening companies, including carriers that perform
screening, would:
Provide uniform standards for all companies that intend to
provide screening.
Ensure that all companies that conduct screening benefit
from the enhanced requirements imposed upon screening companies in part
111.
Clearly differentiate between the roles of the air
carriers, indirect air carriers, and foreign air carriers as carriers
and as certificated screening companies.
Clarify the relationships among air carriers, indirect air
carriers, and foreign air carriers that contract with each other for
screening services.
Some commenters to the ANPRM questioned the need to certificate air
carriers for the purpose of screening since they are already
certificated by the FAA. Air carriers currently are certificated to
operate as air carriers under part 119. However, the certification
process in part 119 does not include an evaluation of whether an
applicant can adequately perform screening functions. The FAA has
determined that to fulfill the congressional mandate, all who perform
screening shall establish their ability to do so by qualifying for
screening company certificates. Any air carrier, indirect air carrier,
or foreign air carrier that does not choose to hold a screening company
certificate could contract with a certificated screening company to
perform its screening.
II.C. Roles of Carriers and Screening Companies
Currently, carriers have statutory and regulatory responsibilities
to conduct screening properly. The FAA cannot propose to relieve
carriers of these responsibilities. The responsibility of air carriers
and foreign air carriers to ensure that screening is conducted on
persons and property to be carried in the cabin of an aircraft is in
the statute (49 U.S.C. 44901(a)) and cannot be changed by the FAA. As
discussed previously, the requirement to certificate screening
companies also is in the statute. Issues arise, then, concerning the
relationships between the carriers and the screening companies and the
proper roles for each. The FAA interprets these statutory provisions as
leaving the ultimate responsibility for screening with the carriers and
providing for concurrent carrier and screening company responsibilities
for some tasks. This relationship is not unlike that between repair
stations and air carriers. Repair stations are certificated under part
145 and are responsible for performing maintenance in accordance with
regulations; however, the air carriers remain ultimately responsible
for the airworthiness of their aircraft. The FAA recognizes that this
relationship may be difficult to define, but proposes the following
general guidance.
The FAA envisions that the carriers would continue to be
responsible for providing proper screening equipment, such as X-ray
machines and metal detectors. The carriers would also have primary
responsibility to deal with the airport operators on issues regarding
the locations of screening equipment in the airports. Finally, and
perhaps most importantly, the carriers would be responsible for
overseeing the performance of the screening companies to ensure that
they carry out their duties.
The screening companies would be responsible for inspecting persons
and property for unauthorized explosives, incendiaries, and deadly or
dangerous weapons. They would be responsible for ensuring that they use
the equipment properly, staff the screening locations adequately, train
their screeners properly, and otherwise manage the screening locations
so as to enable them to meet the standards for screening in their
security programs.
II.D. Compliance and Enforcement Issues
As discussed previously, this proposed rule would not shift the
responsibility for screening from air carriers, indirect air carriers,
and foreign air carriers to screening companies. Rather, certificating
screening companies is a way to assist carriers in ensuring that those
who conduct screening are fully qualified to do so. Certification also
would make screening companies directly accountable to the FAA for
failures to carry out their screening duties. This rule would increase
the level of responsibility required of screening companies while
improving screening oversight by air carriers, indirect air carriers,
and foreign air carriers.
The FAA envisions that screening companies would be primarily
responsible for the day-to-day operation of the screening locations.
Screening companies generally would be held accountable for screening
location failures. The FAA intends to look to screening companies to
maintain the
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highest standards and to continuously monitor and improve their
capabilities.
The full range of actions would be available for use against
screening companies that failed to comply with the regulations, their
operations specifications, and their security program. These include
counseling, administrative action (warning notices and letters of
correction), civil penalties, and certificate actions (suspension or
revocation of a certificate). In addition, if the screening company was
unable to carry out its duties at a specific screening location, the
FAA could amend its operations specifications (see Sec. 111.111) to
withdraw its authority to screen at that location.
If a company was removed from a location because of its failure to
screen properly, the FAA would continue to monitor closely that
location as another company came in to conduct screening. The FAA is
concerned about situations in which incoming companies use the same
equipment and hire the same employees from the unsatisfactory companies
and make no real changes in the quality of screening. The FAA would
consider requiring incoming companies to take additional corrective
measures to ensure that the problems that affected the performance of
the previous companies do not recur.
Carriers would continue to be responsible for the overall proper
screening of persons and property. They would be directly accountable
for failing to carry out duties specifically assigned to them, such as
providing the proper screening equipment and carrying out specific
oversight functions (such as Ground Security Coordinator duties and
auditing functions). In addition, when a screening company failed to
screen properly or otherwise failed to carry out its duties, the FAA
would carefully evaluate all facts and circumstances to determine
whether the carrier should be the subject of enforcement action. In
general, repeated or systemic failures of a screening company to comply
with the regulations or fundamental failures of the screeners to comply
with security requirements might lead to the conclusion that the
carrier has failed to conduct screening properly or to oversee the
screening company's operations, even if the carrier had conducted the
required audits and did not discover problems. The audits would be one
tool for the carrier to use but would not limit its responsibility to
ensure proper screening. Carriers would be expected to identify
problems with the screening company and take corrective action in a
timely manner.
If the FAA determines that a screening company is performing
poorly, whether at a particular location or in its overall operations,
the FAA could require the screening company and/or the responsible air
carriers to implement additional security measures under this proposal
to maintain system performance. Such additional measures would vary
depending on the circumstances and might involve, for example,
additional training for screeners, redundant screening of property, or
increased management oversight. The measures could slow screening
operations at affected locations but would help ensure that thorough,
effective screening was being performed. If the additional measures
proved ineffective or if the circumstances were extreme, amendments of
the screening companies' operations specifications or suspensions or
revocations of certificates could result.
The proposal would require that each air carrier or foreign air
carrier required by the FAA to implement additional security measures
to maintain system performance notify the public of the increased
measures by posting signs at affected screening locations (see section
IV.F.). The signs would be required to state that the additional
security measures being implemented by the air carriers could slow
screening operations at those locations, but that the measures are
necessary to ensure the safety and security of flights. The proposal is
intended to ensure that the traveling public is informed and to
increase screening company and air carrier accountability for their
operations. The specific language and specifications to be required for
the signs would be included in the security programs.
II.E. New Part 111
The FAA proposes to create a new part 111, which would contain all
the requirements for screening companies. Part 111 would require
certification of all screening companies that perform screening for air
carriers under part 108, indirect air carriers under part 109, and
foreign air carriers under part 129.
The proposal would affect only the screening that is done by
inspecting persons or property for the presence of any unauthorized
explosive, incendiary, or deadly or dangerous weapon, as required under
parts 108, 109, and 129. These inspections currently are performed by a
variety of methods such as manual searches, metal detectors, X-ray
machines, explosives detection systems, explosives trace detection
systems, and advanced technology devices. The proposal would also amend
certain requirements in parts 108, 109, and 129 to accommodate the
proposed new part 111.
Forms of screening other than inspection, such as determining that
a person is a law enforcement officer with authority to carry a weapon
on board aircraft, would not be covered in part 111. These other forms
of screening would not have to be done by a certificated screening
company. These types of screening would continue to be the
responsibility of the carriers. They could be performed, as they are
now, by such methods as ticket agents checking the documentation of law
enforcement officers flying armed, local law enforcement officers at
the checkpoint checking the credentials of law enforcement officers
entering the sterile area, or checkpoint security supervisors checking
the law enforcement officer's credentials. The checkpoint security
supervisors checking these credentials would be doing so as
representatives of the carriers, rather than as part of their duties
for the certificated screening companies.
II.F. Screening of Cargo
Certain cargo carried on passenger air carriers must be screened.
The FAA considered whether this screening should be done only by
certificated screening companies and has decided to propose that it
should be. If unauthorized explosives or incendiaries are introduced
aboard passenger aircraft in cargo, it would be just as devastating as
if introduced in checked or carry-on baggage or on passengers. The FAA
believes that cargo also must be subjected to rigorous screening
controls to avoid such a result.
Accordingly, the FAA proposes that inspections of cargo for
unauthorized explosives and incendiaries be done only by certificated
screening companies, similar to the proposal for persons, accessible
property, and checked baggage. Under this proposal, air carriers and
foreign air carriers carrying passengers would be required to ensure
that cargo screening is conducted by certificated screening companies.
Indirect air carriers that elect to perform required screening (instead
of referring their cargo to air carriers or foreign air carriers for
required screening) also would be required to hold screening company
certificates or contract with certificated screening companies to
perform the screening. The FAA believes that a comprehensive approach
to certificating all screening companies, including companies that
screen cargo, is vital to having a safe, secure, and effective aviation
security system. The FAA requests public comments on the issues
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relating to certificating indirect air carriers in this NPRM.
II.G. Screening Standard Security Program (SSSP)
In addition to the regulatory requirements, the proposed rule would
establish a separate security program for screening companies that
would accompany the requirements in proposed part 111. The Screening
Standard Security Program (SSSP) would contain detailed and sensitive
requirements relating to screening that currently are contained in the
carrier security programs, as well as additional requirements related
to proposals in part 111. The carriers as well as the screening
companies would be required to ensure that their screening companies'
security programs are carried out.
The FAA considered proposing that screening companies be required
to comply with the standardized security programs for air carriers,
foreign air carriers, and indirect air carriers. Requiring screening
companies to comply with the ACSSP, MSP, and IACSSP would emphasize
that the carriers are primarily responsible for ensuring that screening
is properly carried out. It would also prevent having to relocate the
screening-related language from the carrier security programs to the
screening standard security program. However, the FAA recognizes that
this system could result in confusion in some cases where screening
companies might have to observe portions of three different security
programs--the ACSSP, the MSP, and the IACSSP. Having a separate
security program for screening companies would also more clearly
delineate the responsibilities of screening companies and those of the
carriers, which would continue to be responsible for proper screening.
Both part 111 and the Screening Standard Security Program would state
that the requirements also are applicable to carriers that conduct
screening.
The FAA requests comments on consolidating all screening-related
program requirements into one screening standard security program. The
FAA has prepared a draft SSSP proposal to accompany the release of this
NPRM. Commenters with a need to know, as specified in 14 CFR part 191,
may request copies of the draft proposed SSSP from the Office of Civil
Aviation Security Policy and Planning as listed in the section titled
FOR FURTHER INFORMATION CONTACT.
II.H. Screener Qualifications
As discussed in section I.C., it is critical that screeners be
highly qualified in order to counter the increasing sophistication of
the threats. This proposal contains a number of provisions to promote
improved qualifications of screeners. Most notable are the proposed
requirements to include FAA testing standards for screening personnel,
test administration requirements for carriers, and additional
monitoring of screener performance made possible by TIP as discussed in
section II.I.
Under this proposal, screeners would be required to pass knowledge-
based and X-ray interpretation tests developed by the FAA before
beginning on-the-job training. This would help to ensure that all
screeners have uniform understanding of their tasks and a consistent
high level of achievement. The FAA would provide the tests by amending
the screening companies' security programs through notice and comment
procedures and would expect the screening companies to train their
personnel to pass those tests. Screening companies would have
flexibility in designing their training programs and would submit them
to the FAA for approval. The FAA is not proposing that training
programs be designed in a specific manner, only that they thoroughly
and effectively address all of the testing standard subjects. The
proposal also would require that the carriers administer and monitor
the tests to promote carrier involvement in the training process and to
establish closer accountability for the administration of the training
tests.
II.I. Performance Measurements and Standards
For the FAA, carriers, and screening companies to monitor the
performance of screening companies and to track their level of
performance, a consistent means of regularly measuring performance is
needed. The FAA, carriers, and screening companies need to be able to
monitor how well screeners are detecting threat objects and must be
able to determine whether performance is decreasing and whether
corrective measures are needed. The FAA, carriers, and screening
companies need to be able to measure performance of a screening
location to determine what factors lead to better or worse detection
and what corrective measures are effective.
Factors that may lead to better or worse detection include the
amount of passenger traffic, the type of training that the screeners
receive, how often screener functions are rotated, and the conditions
under which screeners are working. The FAA, carriers, and screening
companies also need to determine which types of threat objects the
screeners can readily detect and which types they have difficulty
detecting. All of these factors can be analyzed along with other
elements that may affect screening ability, such as education level,
screening experience, and screener compensation levels. The analyses
would be used by the FAA to work more effectively with screening
companies and carriers to improve screening continuously. Further, it
appears that regular testing of screeners promotes vigilance. Frequent
testing can increase screeners' ability to recognize threats that they
rarely, if ever, encounter in reality but must be ready to detect
should the unlikely event occur.
In order to monitor screening performance and to examine the
effects of all of these factors, the means of measuring performance
must be consistent, reliable, cost effective, and frequent. The two
options for conducting testing are anonymous testing by individuals and
computer testing. The FAA and the carriers now rely on testing
conducted by individuals. Carriers currently are required to test each
screener periodically, as set forth in their security programs.
The FAA uses FAA employees to submit for screening items of baggage
that contain test objects that will appear on the X-ray screens to be
weapons or explosives. There are a number of limitations involved with
this method, however. For instance, the FAA tests cannot be conducted
frequently at many screening locations due to the large number of
airports in the United States and their diverse locations. The FAA must
arrange for different employees to travel to airports and have them
change their appearance after each test to prevent the screeners from
recognizing them as FAA testers. It is therefore very difficult,
costly, and labor-intensive to obtain a large number of tests that
accurately measure screeners' success rates and that provide a
continuous measure of the success of screening locations, either
overall or under specific conditions. Further, when screening personnel
realize that the FAA is conducting tests, they sometimes alert other
nearby screening locations to expect testing, which can skew the
testing results. Because FAA testing is infrequent at many locations,
it also can limit the number and variety of test objects that the
screeners are exposed to. Also, because the tests are
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conducted by individuals, there is the possibility that different FAA
employees will apply the test protocols differently, which also could
skew the testing results.
To deal with these problems, the FAA has developed TIP, discussed
previously in section I.C. This computer-based system is capable of
introducing test objects to screeners on the X-ray and EDS systems at
various rates set on the computers. The TIP program can be set to run
the entire time that a screening location is in use. Test items can be
easily added to or changed by simply loading new images or parameters
into the computers, providing an efficient means to regularly expose
screeners to the most recent and sophisticated threats. The success
rates can easily be recorded and later analyzed by the FAA, carriers,
and screening companies to monitor continuously how well the screening
locations are operating.
The FAA has conducted validation testing of TIP. In addition, at
one location one screening company conducted extensive testing of TIP
and provided its data to the FAA for analysis. The FAA determined that
the detailed results of the FAA and screening company testing should
not be made available to the general public because they could be used
to attempt to discover ways to defeat the screening system; therefore,
the FAA has determined that this information is sensitive security
information under 14 CFR part 191. Air carriers, foreign air carriers,
and indirect air carriers that have security programs under parts 108,
129, and 109, respectively, may obtain further information on these
tests and the FAA's analysis by contacting the Office of Civil Aviation
Security Policy and Planning as listed in the section titled FOR
FURTHER INFORMATION CONTACT. Screening companies that are screening for
carriers may obtain copies of the testing results through their
carriers. Comments on the data and analyses should be submitted to the
Office of Civil Aviation Security Policy and Planning, rather than to
the public docket, because of the sensitivity of the information.
Based on all of the data gathered to date, the FAA has determined
that TIP is an effective and reliable means to measure screener
performance. Accordingly, the proposed rule would require the use of
threat image projection systems on all X-ray and explosives detection
systems. TIP would be installed over a period of time as specified in
the security programs. The specific TIP equipment requirements
acceptable to the Administrator would be set forth in the carriers'
security programs. The screening companies and carriers would be
required to download the data or allow the FAA to download the data in
accordance with standards that would be adopted in the security
programs through notice and comment procedures. The screening companies
and carriers would be able to download the data at any time to monitor
their own performance.
The results of TIP would be used to monitor the performance of
screening locations, screening companies, and individual screeners. TIP
operational data would be analyzed to focus resources on most
effectively improving screening to detect threats. TIP data can be used
to determine such things as what working conditions lead to better
performance, on which topics the screeners need further instruction,
and what corrective action or training programs prove to be most
successful. The FAA would look at the success rates of screeners
detecting various kinds of test objects, the success rates at different
times of day and during different traffic levels, and the other factors
that may affect screening effectiveness.
TIP also serves as a continuous means of on-the-job training for
screeners. Screeners report that being exposed to TIP images keeps them
alert and interested, supplements their classroom training, and fosters
healthy competition among them to continuously improve their detection
rates. The use of TIP provides screeners with immediate feedback
regarding their performance and indicates specific areas for
improvement.
The FAA anticipates that in the future, TIP data may provide a
basis not only to monitor the performance of screening locations but
also to establish performance standards. Under such a system, the
screening companies and carriers could be required to meet the
standards set forth in their security programs for the detection of
various threat objects. For instance, the FAA anticipates that it would
analyze TIP data to determine the range of screening company detection
rates in the United States. It might then set minimum detection
percentages that each screening company would have to meet based on the
higher detection rates within the range. The minimum detection
percentages could be incrementally raised as overall screener
performance in the United States rises. The performance standards might
vary depending on such factors as the screening system being used and
the type of threat object. Initially, however, the FAA could implement
overall performance measurement requirements whereby the FAA would
collect performance data from all TIP systems installed in the United
States and then require corrective action of the screening companies
with the lowest performance. These performance standards would be
developed based on extensive additional data from TIP systems.
The FAA would propose to add these performance measurement and
performance standard requirements as amendments to the security
programs through notice and comment procedures. Including these
requirements in the security programs would protect them as sensitive
security information and allow for flexibility in changing the
standards as screening company performance improves in the United
States. The use of TIP systems to establish performance measurements
and ultimately performance standards would allow the FAA to monitor
closely the performance of screening companies.
If performance standards were adopted in the security programs,
screening companies and carriers that the FAA determined were not
performing to specified standards could be held accountable in any
number of ways, as discussed in section II.D.
The FAA currently tests other forms of screening, such as walk-
through metal detectors and handwands, similar to the way it currently
tests X-ray screening. The FAA may in the future develop performance
standards for other screening equipment and proposed amendments to the
security programs would be issued.
III. Proposed Part 111: Section-by-Section Discussion
Proposed part 111 would prescribe the requirements for screening
company certifications and operations. Part 111 would apply to all
screening companies, whether they are performing screening under part
108, 109, or 129. Carriers would be required to ensure that their
screening operations, whether conducted by the carriers themselves or
by screening companies with which the carriers contract, are conducted
in accordance with part 111 requirements.
Subpart A would contain general information relating to
applicability, definitions, inspection authority, falsification, and
prohibition against interference with screening personnel and is
described in paragraphs III.A. through III.E. Subpart B would prescribe
requirements for security programs, screening company certificates,
operations specifications, and carrier oversight and is described in
paragraphs
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III.F. through III.K. Subpart C would prescribe requirements relating
to screening operations such as the screening of persons and property,
the use of screening equipment, employment standards, screening company
manager and instructor qualifications, training and testing, and
performance measurement and standards among others and is described in
paragraphs III.L. through III.W. The following discussion provides
details on each part 111 requirement.
Subpart A--General
III.A. Sec. 111.1 Applicability
Proposed Sec. 111.1 states that the part would prescribe the
requirements for the certification and operation of screening
companies. The requirements in proposed part 111 would apply to each
screening company that screens for an air carrier under part 108, for
an indirect air carrier under part 109, or for a foreign air carrier
under part 129. The proposed requirements would also apply to the air
carriers (including those air carriers voluntarily adopting aviation
security programs), indirect air carriers, and foreign air carriers
that are responsible for conducting, and therefore overseeing,
screening operations. Portions of proposed part 111 would also apply to
two groups of individuals: all persons conducting screening within the
United States under parts 111, 108, 109 and 129 and all persons who
interact with screening personnel during screening. ``Person'' as
defined in 14 CFR 1.1 means ``an individual, firm, partnership,
corporation, company, association, joint-stock association, or
governmental entity.''
The certification requirements in the proposed rule would apply
only to screening companies performing screening in the United States.
The FAA does not propose at this time to certify screening companies
that perform screening for air carriers at foreign airports. Screening
in other countries is performed either by the host governments or by
private sector screening companies, but under the authority and
operational control of the host governments. However, where air
carriers have operational control over screening outside of the United
States they would be required under this proposal to carry out and
comply with all relevant sections of part 111 to the extent allowable
by local law, with the exception of those requirements related to
screening company certification.
III.B. Sec. 111.3 Definitions
Proposed Sec. 111.3 would define for the purpose of part 111
``carrier,'' ``screening company,'' ``screening company security
program,'' and ``screening location.'' The proposed definitions are
needed to clarify the use of these terms in the proposed rule language.
The term ``carrier'' would be defined for the purposes of parts
108, 109, 111, and 129 to refer to an air carrier, an indirect air
carrier, or a foreign air carrier.
The term ``screening company'' would be defined to mean an air
carrier, indirect air carrier, foreign air carrier, or other entity
that inspects persons or property for the presence of any unauthorized
explosive, incendiary, or deadly or dangerous weapon, as required under
part 111 and 108, 109, or 129, before their entry into a sterile area
or carriage aboard an aircraft.
The term ``screening company security program'' would be defined to
mean the security program approved by the Administrator under this
part.
The term ``screening location'' would be defined to mean any site
at which persons or property are inspected for the presence of any
unauthorized explosive, incendiary, or deadly or dangerous weapon.
Examples of screening locations are checkpoints where persons and
accessible property are screened, ticket counters and baggage makeup
rooms where checked bags may be screened, and cargo areas where cargo
may be screened.
Additional terms to be defined in the part 108 final rule would
also apply to part 111, as would any other definitions contained in
parts 109 and 129 of the chapter. Of particular relevance to this rule
are the definitions for ``cargo'' and ``checked baggage.''
The term ``cargo'' would be defined in part 108 to mean property
tendered for air transportation accounted for on an air waybill. All
accompanied commercial courier consignments, whether or not accounted
for on an air waybill, are also classified as cargo. Security programs
further define the term cargo.
The term ``checked baggage'' would be defined in part 108 to mean
property tendered by or on behalf of a passenger and accepted by an air
carrier for transport, which will be inaccessible to passengers during
flight. Accompanied commercial courier consignments are not classified
as checked baggage.
III.C. Sec. 111.5 Inspection Authority
This proposed section would clarify that a screening company shall
allow FAA inspections and tests to determine its compliance with part
111, its security program, and its operations specifications. The
screening company shall also allow FAA inspections and tests of
equipment and procedures at screening locations that relate to carrier
compliance with their regulations. This proposed section would also
require screening companies to provide the FAA with evidence of
compliance. Both of these proposed requirements are similar to those in
proposed Sec. 108.5 of Notice No. 97-12.
III.D. Sec. 111.7 Falsification
This proposed section would apply falsification requirements to
screening companies that are similar to those that apply under current
Sec. 108.4. While the provisions of Sec. 108.4 apply to matters
involving screening, the inclusion of a falsification rule in part 111
would serve to emphasize the requirements. Under this rule, no person
would be permitted to make or cause to be made any fraudulent or
intentionally false statement in any application for any security
program, certificate, or operations specifications or any amendment
thereto under part 111. No person would be permitted to make or cause
to be made any fraudulent or intentionally false entry in any record or
report that would be kept, made, or used to show compliance with part
111 or to exercise any privileges under part 111. Also, any
reproduction or alteration for fraudulent purpose of any report,
record, security program, certificate, or operations specifications
issued under part 111 would be subject to civil penalties under this
proposed rule. There are also criminal statutes that might apply to
such activities.
III.E. Sec. 111.9 Prohibition Against Interference with Screening
Personnel
The proposed rule would include new requirements prohibiting any
person from interfering with, assaulting, threatening, or intimidating
screening personnel in the performance of their screening duties. The
proposed rule is intended to prohibit interference that might distract
or inhibit a screener from effectively performing his or her duties.
This rule is necessary to emphasize the importance to safety and
security of protecting screeners from undue distractions or attempts to
intimidate. Previous instances of such distractions have included
excessive verbal abuse of screeners by passengers and certain air
carrier employees. Screeners encountering these situations are taken
away from their normal duties to deal with the disruptive people, which
may affect the screening of other people. The
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disruptive persons may be attempting to discourage the screeners from
being as thorough as required. Screeners may also need to summon
checkpoint screening supervisors and law enforcement officers, taking
them away from other duties. Checkpoint disruptions can be potentially
dangerous in these situations. This proposal would help support
screeners' efforts to be thorough and would help prevent persons from
unduly interfering with the screening process. This proposed rule is
similar to 14 CFR Sec. 91.11, which prohibits interference with
crewmembers aboard aircraft and which also is essential to passenger
safety and security. Note that this proposed rule is not intended to
prevent good-faith questions from persons seeking to understand the
screening of their persons or property. But abusive, distractive
behavior and attempts to prevent screeners from performing required
screening would be subject to civil penalties under this proposed rule.
Subpart B--Security Program, Certificate, and Operations Specifications
III.F. Sec. 111.101 Performance of Screening
Proposed Sec. 111.101 states that each screening company shall
conduct screening and screener training in compliance with the
requirements of part 111, its approved screening company security
program (see section III.G.), its approved operations specifications,
and applicable portions of security directives (SD) and emergency
amendments (EA) to security programs. When a response to an imminent
threat is required, the FAA issues SD's to air carriers under current
Sec. 108.18, and EA's to foreign air carriers and indirect air carriers
under Secs. 129.25 and 109.5, to require immediate action and response
to the threat.
SD's and EA's may be issued to carriers to help them respond to
threats that require quick responses. SD's and EA's typically involve a
range of differing requirements, only a portion of which may pertain to
how the screening companies shall perform their duties. Currently,
carriers are required to provide to their screening companies any
screening-related information from SD's and EA's and any other
applicable information pertaining to threats. Carriers extract the
screening-related requirements from the SD's and EA's and forward them
to the screening companies.
It appears that the most efficient means for the FAA to issue the
SD and EA requirements to screening companies would be to continue the
practice of issuing them to the carriers, who then provide appropriate
information to their screening companies. It would be inefficient for
the FAA to attempt to issue two different SD or EA documents, one with
the requirements solely applicable to screening companies and one with
all of the requirements for the carriers. Moreover, this emphasizes the
ultimate statutory and regulatory responsibilities of the carriers to
perform aviation security screening and to ensure that screening
companies carry out the requirements in the SD's and EA's.
III.G. Secs. 111.103; 111.105; and 111.107 Security Programs
As discussed in II.G., the FAA is proposing to establish a separate
security program to accompany proposed part 111. The Screening Standard
Security Program (SSSP) would contain requirements for screening
persons, accessible property, checked baggage, and cargo for air
carriers, foreign air carriers, and indirect air carriers. This would
consolidate all of the screening-related requirements into a single
source that screening companies could use to carry out their duties.
The ACSSP would continue to contain the nonpublic details regarding the
air carriers' responsibility to conduct screening under part 108, as
would the MSP for foreign air carriers and the IACSSP for indirect air
carriers. However, much of the screening information to be contained in
the Screening Standard Security Program would be relocated from the
ACSSP, MSP, and IACSSP.
Under the proposal, screening companies would be directly
responsible for compliance with their security programs and might be
subject to enforcement actions if they fail to comply. Screening
companies would therefore have a strong interest in complying with the
program requirements. Carriers would continue to have an interest in
the screening requirements in the security programs, because they would
remain responsible for their implementation and oversight by statute
and in the case of air carriers and foreign air carriers would be
transporting the persons and property being screened. As part of their
oversight responsibilities, carriers would be required to have access
to, understand, and make available to the FAA upon request copies of
the security programs of the companies with which they contract.
Under the proposal, the sections pertaining to security program
requirements are organized in the same format that is used in Notice
No. 97-12 for part 108. Proposed Sec. 111.103 would be titled
``Security program: adoption and implementation'' and would require
that each screening company adopt and carry out an FAA-approved
screening company security program that meets the requirements of
proposed Sec. 111.105. Proposed Sec. 111.105 would be titled ``Security
program: form, content, and availability'' and would provide specific
requirements for security programs. Proposed Sec. 111.107 would be
titled ``Security program: approval and amendments'' and would describe
the procedures for approvals of and amendments to security programs.
Proposed Sec. 111.105 would be divided into three paragraphs.
Paragraph (a) would state that a security program shall provide for the
safety of persons and property traveling on flights provided by the air
carriers and/or foreign air carriers for which a screening company
screens against acts of criminal violence and air piracy and the
introduction of explosives, incendiaries, or deadly or dangerous
weapons. This same wording appears under proposed Sec. 108.103 of
Notice No. 97-12 for air carriers, as both parties are responsible for
passenger safety. Paragraph (a) would also require that screening
company screening performance coordinators (see section III.P.)
acknowledge receipt of amendments to their programs in signed, written
statements to the FAA within 72 hours. The security programs would have
to contain the items listed under paragraph (b) of Sec. 111.105 and be
approved by the Administrator.
Proposed Sec. 111.105(b) would list three items that a screening
company's security program shall include at a minimum. The security
program shall include the following: the procedures used to perform the
screening functions specified in proposed Sec. 111.201; the testing
standards and training guidelines for screening personnel and
instructors; and the performance standards and operating requirements
for threat image projection systems. These requirements are further
explained in the detailed discussions of the sections.
Proposed Sec. 111.105(c) would describe logistical and availability
requirements related to a security program. A screening company would
be required to maintain at least one complete copy of its security
program at its principal business office and at each airport served and
to make a copy of the program available for inspection upon the request
of an FAA special agent. All screening companies and applicants for
screening company certificates,
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regardless of type, would be required to restrict the availability of
information in their security programs to those persons with an
operational need to know in accordance with Sec. 191.5 and refer
requests for such information by other persons to the Administrator.
All of these requirements are similar to the requirements for air
carriers under proposed Sec. 108.105.
Proposed Sec. 111.107 would be divided into four sections:
``Approval of security program,'' ``Amendment requested by a screening
company,'' Amendment by the FAA,'' and ``Emergency amendments.'' The
proposed language is based on the language in proposed Sec. 108.105
(Notice No. 97-12) with the exception of the following changes unique
to screening companies.
Proposed Sec. 111.107(a) would differ from proposed Sec. 108.105
(Notice No. 97-12) in several ways due to the proposed application
process for screening company certifications. The language would state
that unless otherwise authorized by the Assistant Administrator, each
screening company required to have a security program under this part
would be required to submit a signed, written statement to the
Assistant Administrator within 30 days of receiving the SSSP from the
FAA indicating what its intentions are for adopting and carrying out a
security program. A screening company could choose to adopt the SSSP as
is or adopt the SSSP after making amendments to it. If a screening
company chooses to adopt the SSSP without changing it, the granting of
a screening company certificate by the Assistant Administrator would
serve as FAA approval of the SSSP. If the screening company chooses to
adopt the SSSP after making amendments to it, the Assistant
Administrator would either approve the proposed security program within
30 days or give the screening company written notice to modify its
program to comply with the applicable security program requirements.
The remaining procedures for accepting a notice to modify or petition
the notice would be the same as the procedures in proposed Sec. 108.105
of Notice No. 97-12. In this case as well, the Assistant
Administrator's granting a screening company certificate to the
screening company would serve as FAA approval of the screening
company's security program.
Under proposed Sec. 111.107(b), once a screening company is
employed by one or more carriers, it would be required to include in
any application for amendment to its security program a statement that
all carriers for which it screens have been advised of the proposed
amendment and have no objection to it. The screening company would also
be required to include the name and phone number for each individual
who was advised at each carrier. This would ensure that screening
companies would have the opportunity to apply to amend their security
programs, and also would ensure that carriers would be aware of the
applications and have no objections to them. Because carriers would
retain primary responsibility for screening, it would be essential that
they concur with any changes requested by screening companies that
screen on their behalf.
Under proposed Sec. 111.107(c) and (d), if the FAA were to seek to
amend a portion of a security program that covers the activities of
screening companies, it would provide to screening companies notice and
opportunity to comment. Carriers would also be notified and provided
opportunities to comment regarding proposed changes to the SSSP that
apply to their operations. In the case of an emergency, there would be
no prior notice or opportunity to comment.
III.H. Sec. 111.109 Screening Company Certificate
Certificate required. Proposed Sec. 111.109(a) states that a
screening company may not perform required screening except under the
authority of and in accordance with the provisions of a screening
company certificate.
Section 302 of the Federal Aviation Reauthorization Act of 1996
(Public Law 104-264, 49 U.S.C. 44935 note) requires the Administrator
to certificate companies providing security screening. The FAA proposes
to certificate screening companies under 49 U.S.C. 44707, which
provides for examinations and ratings of air agencies. Under that
section, certain pilot schools (14 CFR part 141) and repair stations
(14 CFR part 145) hold air agency certificates. That section also
permits certifications of ``other air agencies the Administrator
decides are necessary in the public interest'' (49 U.S.C. 44707(3)).
By certificating screening companies under section 44707 as air
agencies, the companies would be under the requirements of 49 U.S.C.
44709. That section makes clear that the Administrator may re-inspect
an air agency at any time. Section 44709 also contains the procedure by
which the Administrator may amend, modify, suspend, or revoke a
certificate. This procedure includes an air agency's right to appeal to
the National Transportation Safety Board an order amending, modifying,
suspending, or revoking its certificate. The Board's procedure for
hearing such appeals, found at 49 CFR part 821, includes a hearing
before an administrative law judge and an appeal to the full Board. A
party may petition the U.S. Court of Appeals to review a decision of
the Board. In this way, a screening company would receive full due
process if the FAA were to take action against its certificate.
Application for a screening company certificate. Under proposed
Sec. 111.109(b), an application for a screening company certificate
shall be made in a form and manner prescribed by the Administrator. The
FAA anticipates a two-phase application process as follows. A company
interested in applying for certification as a screening company would
write to the FAA to request application instructions. The application
instructions would require the applicant to submit several items in
writing in a standard format. This same application package would
eventually become the screening company's operations specifications if
the company is approved for certification. (See next preamble section
for discussion of operations specifications.) The completed application
package would be submitted to the FAA as part of phase one and would
contain the following items: the name of the applicant's company; the
company's address; incorporation and tax identification information; a
letter of intent; an organization chart; a description of the company's
ability to perform and comply with regulations; the name of the
company's chief executive officer; the names, titles, qualifications,
and references for the screening performance coordinators; and the
company's procedures for safeguarding and distributing sensitive
security information under part 191.
Upon receiving an application package, the FAA would review and
verify all relevant information. This review might include verifying
past employment and training references for the company's screening
performance coordinator. Once the FAA completes its review, it would
notify the applicant and provide the applicant with a copy of the
Screening Standard Security Program (SSSP). The applicant would need
the security program to complete phase two of the application process.
After obtaining a copy of the SSSP, the applicant would review it
to determine whether the company wants to adopt the SSSP as is or amend
it to incorporate additional company-specific information. The
applicant would be instructed to inform the FAA of its decision
regarding the SSSP in writing within 30 days of receipt of the SSSP. At
that time or soon thereafter the
[[Page 572]]
applicant would prepare and submit to the FAA a copy of its training
curriculum and any FAA-requested changes to its original application.
(See later discussions regarding these requirements in this notice.)
The FAA would provide guidance to the applicant in preparing these
documents, as needed. The applicant would submit the documents as part
of phase two, and the FAA would review them. If the FAA finds that the
documents from phase two meet all requirements, they would be combined
with the phase one documents and signed by the Administrator as the
company's operations specifications. The Administrator would then issue
the company a screening company certificate. If changes are needed, the
FAA would request that the applicant make the specific amendments and
resubmit them before the Administrator would issue a certificate.
Issuance and renewal-general. Under proposed Sec. 111.109(c), an
applicant would be entitled to a certificate if the applicant applies
not less than 90 days before the applicant intends to begin screening
or the applicant's certificate expires; the Administrator determines
that the applicant has met the requirements of this part for the type
of screening certificate requested; the issuance would not be contrary
to public safety and security; and, unless otherwise authorized by the
Administrator, the applicant has not had a screening company
certificate revoked within the past 12 months.
Under proposed Sec. 111.109(c)(2), the applicant would have to be
able to meet the requirements of this part, to include adopting and
carrying out an FAA-approved security program and approved operations
specifications for it to be issued a provisional screening company
certificate. Proposed Sec. 111.109(c)(3) would describe the
requirements that a screening company would have to meet for issuance
or renewal of its 5-year screening company certificate. Failure to meet
the performance standards set forth in its security program would be
grounds for denial of the screening company certificate. Under proposed
Sec. 111.109(c)(5), if the FAA revokes a screening company's
certificate, the company would have to wait 1 year before a new
certificate could be issued unless otherwise authorized by the FAA.
This would ensure that the company that had proven unqualified to hold
its certificate could not immediately seek a new certificate. This
provision is similar to a provision in 49 U.S.C. 44703(c), which
relates to airmen certificates.
Provisional Certificates. Under proposed paragraph (d), companies
that do not hold screening company certificates would be able to apply
for provisional screening company certificates. The FAA would issue a
provisional certificate to an applicant if the Administrator finds that
the applicant is able to meet the requirements of this part, to include
adopting and carrying out an FAA-approved security program and approved
operations specifications (proposed Sec. 111.109(c)(2)). The applicant
for the provisional screening certificate would be subject to FAA
investigation and required to show that it has met the requirements of
this part. Under proposed Sec. 111.109(g)(1), a provisional screening
company certificate would expire at the end of the 12th month after the
month in which it was issued.
The purpose of the proposed provisional certificate would be to
provide a probationary period for the FAA to monitor a company's
screening performance. During that year, a new screening company would
undergo rigorous scrutiny by the FAA, during which time the company
would have to demonstrate that it has met the requirements for FAA
certification. If before the end of the 12-month period the new
screening company has met the requirements of this part, and had
adopted and carried out an FAA-approved security program and approved
operations specifications, the company would be able to apply for and
may be granted a certificate. In accordance with Sec. 111.109(c)(1),
the screening company would be required to apply for a screening
certificate not less than 60 days before the expiration of the
provisional certificate. Companies that cannot demonstrate that they
are qualified during the year or that do not meet the performance
standards specified in the security program would be denied
certification.
The proposed requirements for using a provisional certificate are
consistent with several comments to the Advanced Notice of Proposed
Rulemaking that stated that new companies should have to operate in a
provisional status during which time the FAA would perform compliance
and records audits.
Under proposed Sec. 111.109(d)(2), the holder of a provisional
certificate would not begin screening at a screening location without
first giving the Administrator 7 days' notice, unless otherwise
authorized by the Administrator. This notice would allow the FAA to
monitor the startup of new company operations at each location. The FAA
anticipates that this requirement for 7 days' notice would not result
in any start-up delays should a new company replace a company whose
operations are decertified at a location. The FAA anticipates that it
usually would notify the responsible carriers in advance that they must
replace their existing screening company with a different company if
performance does not improve within a certain amount of time. This
advance notification to the carriers would allow them ample time to
make arrangements with a new company, if necessary, and to provide the
required 7 days' notice to the FAA. If for some reason the FAA was
unable to notify carriers in advance, it would have the authority to
waive the 7 days' notice to keep the screening location in operation.
Screening company certificate. Under proposed Sec. 111.109(e), the
holder of a provisional screening company certificate could be issued a
screening company certificate. The certificate would expire at the end
of the 60th month after the month in which it is issued (proposed
Sec. 111.109(g)(2)). To issue or renew a screening company certificate,
the Administrator would have to determine that the applicant has met
the requirements of part 111, to include adopting and carrying out an
FAA-approved security program and approved operations specifications,
and has implemented applicable portions of the security directives
(proposed Sec. 111.109(c)(3)).
As part of its renewal procedures, the FAA would consider the
company's performance under the performance standards that could be
added to the company's security program. As discussed in section II.I.,
the FAA anticipates using threat image projection (TIP) data to measure
a screening company's overall performance for X-ray and EDS machines
and eventually amending the SSSP to include performance standards. This
data would then be used to help evaluate whether a screening company
certificate should be issued or renewed.
The FAA is proposing that a certificate be valid for 60 months. The
screening company would be required to apply for a renewal at least 60
days before the expiration date in order to continue screening
operations. The 60-month (5-year) renewal would allow the benefits of
renewal without creating an undue burden on the screening company. As
with carriers, the FAA would inspect screening companies regularly and
would continually monitor operations and tests to determine that each
screening company is in compliance with the regulations, its security
program, and its operations
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specifications. This would result in consistent and close monitoring of
screening operations. If significant deficiencies are found during the
5-year period, the FAA would take appropriate action to require
correction of those deficiencies or if necessary would revoke the
screening company's certificate. In addition, requiring a 5-year
renewal of a screening company's certificate would create a more in-
depth review than that conducted during periodic inspections. Before
the FAA would renew a certificate, it would review the company's
operations specifications (including the training curriculum), required
records, the results of FAA inspections and any enforcement actions
that were taken, performance data, and any other relevant information.
There are several precedents in the FAA regulations for periodic
renewals of certificates and approvals. For example, exemptions from
certain Federal Aviation Regulations are typically issued for 3 years,
and Special Federal Aviation Regulations (SFAR) rarely are issued for
longer than 5 years. The duration of pilot school certificates in part
145 is 24 months. Having a specific duration encourages a thorough
review of any changes in the environment of a company, such as the
addition of new equipment or an increase in the size of operations, as
well as a review of past performance and an evaluation of what should
be done to improve performance if necessary.
The FAA considered proposing a shorter duration for the screening
company certificates but decided to propose the 60-month duration as a
reasonable option for obtaining the most benefits with the least
burden. The FAA invites comments on the costs and benefits of the
proposed duration and of a shorter duration such as 2 or 3 years.
Certificate contents. Proposed paragraph Sec. 111.109(f) lists the
information that would be contained on a certificate, such as the name
of a company and a certificate number, certificate issuance date, and
expiration date.
Proposed compliance. The FAA is considering how much time after the
publication of the final rule should be given for carriers and
screening companies to come into compliance. The FAA proposes in
paragraph Sec. 111.109(k) that the effective date for the final rule be
60 days after its publication in the Federal Register. As of that date,
no company could begin screening under part 108, 109, or 129 unless it
holds a screening company certificate.
The FAA also proposes, however, to provide some accommodation for
existing screening companies. There are many companies that have been
providing required screening services for years. The FAA has observed
their operations and is familiar with these companies. The FAA proposes
in Sec. 111.109(k) that companies actively screening at any time during
the year before the date of publication of the final rule be able to
continue screening after the effective date if they submit applications
for provisional certificates within 60 days after publication of the
final rule. The FAA would review the applications and issue provisional
certificates to those qualified. A company that applied on time and
that submitted complete and accurate documentation as required would be
able to continue screening unless and until it is issued a denial of
its application.
After an existing screening company receives its provisional
certificate, it would be subject to a rigorous application process to
achieve certification. The company would be required to achieve
certification before the expiration of its provisional certificate in
order to continue screening. Existing screening companies could apply
for certificates any time after they receive provisional certificates
but not later than 60 days before the expiration of their provisional
certificates.
Duration. In addition to establishing a 12-month provisional
certificate and a 60-month certificate (discussed previously), proposed
Sec. 111.109(g)(3) would provide that a certificate would expire if a
screening company has not provided required screening during the
previous 12 months. Under this provision, a company not actively
screening and maintaining its proficiency could lose its authority to
screen. If the company intends to screen again, it would need to apply
for a provisional certificate.
A screening company would have the responsibility for keeping track
of its compliance with this requirement and for returning its
certificate, as required in Sec. 111.109(h), if it has automatically
expired. During the FAA's yearly inspections of screening locations, it
intends to compare its list of screening companies with those companies
that are performing screening at locations. If a screening company does
not appear to have a screening location, the FAA would check with the
company to determine when it last conducted screening for a carrier.
Proposed paragraph (h) would require the holder of a screening
company certificate that is expired, suspended, or revoked to return
the certificate to the Administrator within 7 days. Suspension or
revocation of a certificate would follow established procedures for
certificates issued by the FAA such as airport, air carrier, and airmen
certificates (see earlier discussion of this issue in ``Certificate
required'').
Amendment. Under proposed Sec. 111.109(i), a screening company
would be required to apply for an amendment to its certificate to
change any of the information listed on the certificate, such as the
name of the screening company, and/or any names under which it would do
business.
Inspection. Under proposed Sec. 111.109(j), screening company
certificates would be made available for inspection upon request of the
Administrator.
III.I. Secs. 111.111; 111.113; and 111.115 Operations specifications
Under proposed Sec. 111.111, screening companies would be required
to have approved operations specifications before they could perform
screening. Screening companies would prepare operations specifications
with FAA guidance. Under proposed Sec. 111.115, during the application
process for a provisional certificate, a company would submit its
operations specifications to the FAA for approval. Once the operations
specifications have been approved, the screening company would not need
to obtain subsequent approval when it applies for a certificate or
renews its certificate. However, the FAA would review the operations
specifications to consider whether changes are needed. Further FAA
approval of operations specifications would only be necessary if the
screening company seeks to amend its operations specifications. The
proposed requirements for approvals and amendments of operations
specifications would follow the same process as is currently provided
for air carrier security programs.
Under proposed Sec. 111.113, operations specifications would list
the following items: the locations at which a company may conduct
screening; the types of screening that the company is authorized to
perform (persons, accessible property, checked baggage, and cargo); the
equipment and methods of screening that the company may employ; the
name of the company's screening performance coordinator (SPC) (see
discussion in the next section of this preamble); the procedures for
notifying the Administrator and any carrier for which the company is
performing screening if an equipment or
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facility failure makes the performance of adequate screening
impracticable; and the curriculum used to train persons performing
screening functions. The operations specifications would also be
required to contain a statement signed by the person required by
Sec. 111.209(b) on behalf of the company, confirming that the
information is true and correct. The operations specifications would
also contain any other information that the Administrator would deem
necessary. Portions of the above items and the format may be provided
by the Administrator as standard operations specifications.
Screening companies in most cases would be authorized to screen at
all locations in the United States. However, where a special
circumstance occurs, the FAA would have the ability to amend a
screening company's operations specifications to limit the company's
authority to screen at a particular location in accordance with the
procedure in Sec. 108.105(c). One example would be where the FAA is
deploying new technology that required a high degree of oversight, such
as the recent deployments of explosives detection systems. In such a
case, the FAA might limit the locations at which a screening company
could operate the new technology. Another example would be where a
company demonstrates an inability or unwillingness to comply with
required procedures at one location, but at other locations is in
compliance. The FAA could amend the company's operations specifications
to remove the company's authority to operate at the one location. If
the company later comes into compliance at that location the operations
specifications could be amended to restore its authority to screen
there.
Operations specifications would list the types of screening that
companies are authorized to perform. This requirement would emphasize
the different capabilities and needs of the various companies that
perform screening. For instance, cargo screening involves procedures
different from those for screening persons. A company's required
operations specifications, including its training program, would
reflect the type(s) of screening that it would be authorized to
perform.
The operations specifications would include the equipment and
methods of screening that the Administrator has authorized the company
to operate and carry out. Examples include manual searches of items,
metal detector inspections of persons, and X-ray inspections. The
operations specifications would also include procedures for notifying
the Administrator and the carrier(s) for which the company is
performing screening in the event that the procedures, facilities, or
equipment that the company is using are not adequate for it to perform
screening. Each company's operations specifications, including its
training program, would specify the methods and equipment on which it
was authorized. There shall be a training curriculum for each type of
equipment that a company operates in performing screening. The training
program curriculum would have to be approved as part of the operations
specifications before the company would be certificated as a screening
company.
Proposed Sec. 111.113(c) would require a screening company to
maintain a complete copy of its operations specifications at its
principal business office and at each airport where it conducts
security screening. The screening company would also have to ensure
that the operations specifications are amended to remain current and
made available to the Administrator upon request. The screening company
would be required to provide a current copy of its operations
specifications to the carrier(s) for which it screens. The screening
company would also be required to restrict the availability of
information in its operations specifications to those persons with an
operational need to know. Persons with an operational need to know are
specified in Sec. 191.5(b). The screening company would be required to
direct to the Administrator requests for information that is in
operations specifications if the requests are from persons other than
persons with an operational need to know. These proposed requirements
would be necessary to ensure that operations specifications are
available to persons who need to know them and at the same time to
protect security sensitive information in the operations
specifications. Furthermore, these requirements would ensure that
carriers have current copies of screening companies' operations
specifications for monitoring and auditing purposes.
III.J. Sec. 111.117 Oversight by air carriers, foreign air carriers,
or indirect air carriers
Proposed Sec. 111.117(a) would make clear that each screening
company holding a certificate under part 111 would be required to allow
any air carrier, indirect air carrier, or foreign air carrier for which
it performs screening to inspect its facilities, equipment, and records
to determine its compliance with part 111, its security program, and
operations specifications. The proposed regulation would also require
that a screening company allow any carrier for which the company is
performing screening to test the screening company's screening
personnel using the procedures specified in the applicable security
program. This is a natural consequence of the fact that carriers are
ultimately responsible for proper screening and must be able to ensure
that their screening companies are in compliance and that screening
personnel are performing adequately.
Because the carriers are ultimately responsible for screening and
contract with screening companies to perform the service on their
behalf, the FAA does not consider it essential from a legal standpoint
to include proposed Sec. 111.117. However, it appears that inclusion of
this section may avoid confusion concerning the roles of the carriers
and screening companies. The FAA requests comments on whether to
include this section in the final rule.
If a carrier chooses to hold a screening company certificate and to
conduct screening at a particular location on its own behalf, it would
still have to perform oversight functions. In its capacity as a
screening company, it would be responsible for day-to-day operations;
in its capacity as a carrier, it would have to audit and test the
performance of its screening functions. Any other carrier using that
screening location also would be responsible for auditing and testing
the carrier in its capacity as a screening company.
In performing oversight responsibilities, the carriers need to know
when the FAA discovers significant compliance problems with the
screening companies. Currently, when the FAA discovers an alleged
violation, it typically brings it to the attention of the appropriate
carrier(s) to initiate corrective action as soon as possible. This
often is done in a discussion with the station manager or other carrier
official at the time of the inspection. Depending on the circumstances,
enforcement action may be taken later. The FAA envisions that if it
finds an alleged violation committed by a screening company, it would
discuss the matter not only with the screening company, but also with
the relevant carrier(s).
The FAA also proposes in Sec. 111.117(b) that each screening
company shall provide a copy of each letter of investigation and final
enforcement action to each carrier using the screening location where
the alleged violation occurred. Final enforcement actions include
warning letters, letters
[[Page 575]]
of correction, orders assessing civil penalties, and orders of
suspension and revocation. The screening company would be required to
provide a copy to each applicable carrier's corporate security officer
within 3 business days of receipt of the letter of correction or final
enforcement action. This proposed requirement would assist the
carriers(s) in evaluating the performance of the screening company.
Such enforcement actions could include warning notices and letters of
correction, civil penalty actions, suspensions or revocations of
certificates, cease and desist orders, or other actions. The FAA
proposes that a screening company would have to provide copies of these
documents to only those carriers for which it conducted screening at
the location of an alleged violation, rather than to all carriers for
which it conducted screening nationwide. The proposed requirement to
provide the copies within 3 business days of receipt would ensure that
the carrier(s) receive(s) timely notice.
The FAA considered proposing that the FAA would provide copies
directly to the carriers involved. However, the FAA believes that this
responsibility more correctly belongs with the screening companies. A
screening company should keep the carriers for which it is performing
screening informed of the company's compliance status. During its
regular inspections of screening companies, the FAA would check to make
certain that the screening companies are keeping carriers informed. The
FAA requests comments on any alternative means for keeping the carriers
informed of their screening companies' compliance.
III.K. Sec. 111.119 Business office
Under the proposal, each certificated security screening company
would be required to have a principal business office with mailing
address and would be required to notify the Administrator of any
address changes. The FAA would not expect all files to be maintained at
the business office. Most files would be retained onsite and be
available for inspection.
Subpart C--Operations
III.L. Sec. 111.201 Screening of persons and property and acceptance
of cargo
The language in proposed Sec. 111.201 is similar to the proposed
language contained in Sec. 108.201 for air carriers (Notice No. 97-12).
The FAA is not proposing to remove any of the language from proposed
Sec. 108.201 or from similar language in Sec. 129.25, because the
carriers will remain responsible under statute for screening persons
and property. This proposal does, however, include similar provisions
under proposed Sec. 111.201, because screening companies are the
primary screeners of persons and property in most situations, and they
must be aware of and be held accountable for their screening
responsibilities.
Under proposed Sec. 111.201(a), each screening company would be
required to use the procedures included in its approved screening
company security program to inspect each person and his or her
accessible property entering a sterile area. Under proposed
Sec. 111.201(a), each screening company would also be required to deter
and prevent the introduction into a sterile area of any explosive,
incendiary, or deadly or dangerous weapon on or about each person or
the person's accessible property.
Note that this NPRM also proposes to change the wording in
Sec. 108.201(a) and (b) to indicate that the screening procedures,
facilities, and equipment may also be described in the screening
companies' approved security programs as well as in the air carriers'
approved security programs. The FAA expects that differing requirements
would appear in one or the other of the programs, depending on the
requirement. Similar requirements also appear in proposed Sec. 109.201
for indirect air carriers and in existing Sec. 129.25 for foreign air
carriers. These changes are further explained in the detailed proposed
rule discussion for parts 108, 109, and 129.
Under proposed Sec. 111.201(b), each screening company would be
required to deny entry into a sterile area at a checkpoint to the
following: any person who does not consent to a search of his or her
person in accordance with the screening system prescribed in paragraph
(a) of this section; and any property of any person who does not
consent to a search or inspection of that property in accordance with
the screening system prescribed by paragraph (a) of this section.
Proposed Sec. 111.201(c) would state that the provisions of
paragraph (a) of Sec. 111.201, with respect to firearms and weapons,
would not apply to law enforcement personnel required to carry firearms
or other weapons while in the performance of their duties at the
airport; persons authorized to carry firearms in accordance with
Sec. 108.213, 108.215, 108.217, or 129.27 of the chapter; and persons
authorized to carry firearms in sterile areas under FAA-approved or
FAA-accepted security programs.
Under proposed Sec. 111.201(d), each screening company would be
required to staff the screening locations that it operates with
supervisory and nonsupervisory personnel in accordance with the
standards specified in its security program. This language is similar
to the language contained in proposed Sec. 108.201(g) of Notice No. 97-
12; however, it would be relocated to part 111 because screening
companies are responsible for their own staffing. Also, the words
``security screening checkpoints'' would be replaced with the words
``screening locations'' to include screening that is conducted at
checkpoints and at other locations.
Under proposed Sec. 111.201(e), each screening company would be
required to use the procedures included in its approved security
program to inspect checked baggage, or cargo presented for inspection
by a carrier, and therefore prevent or deter the carriage of explosives
or incendiaries in checked baggage or cargo onboard passenger aircraft.
This language is similar to the language contained in proposed
Sec. 108.201(h) of Notice No. 97-12; however, it has been amended to
more clearly indicate this requirement's applicability to checked
baggage and cargo.
III.M. Sec. 111.203 Use of screening equipment
Under proposed Sec. 111.203(a), each screening company would be
required to operate all screening equipment in accordance with its
approved security program. This equipment would include metal
detectors, X-ray systems, explosives detection systems, explosives
trace detectors, and any other screening equipment that is approved for
use by the FAA. In most cases, the carriers that contract with the
screening companies for their screening services own and maintain the
equipment and provide it to the screening companies for their use.
While screening companies would be responsible for the day-to-day
operational testing and operation of the equipment, the carriers would
still retain responsibility for the calibration and maintenance of the
equipment.
Proposed Sec. 111.203(b)-(d) would contain several X-ray-related
requirements that were originally included as part of Sec. 108.205 (see
Notice No. 97-12) but which the FAA is proposing to relocate to
proposed part 111, because they are functions that screening companies
typically carry out. Specifically, some of the language from proposed
Sec. 108.205 would be repeated in Sec. 111.203 and amended to apply to
screening companies. Proposed Sec. 111.203(b) would state that the
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Administrator authorizes certificated screening companies to use X-ray
systems for inspecting property under approved screening company
security programs if several items are met. A screening company would
be required to show that it has established a mandatory program for the
initial and recurrent training of operators of the X-ray systems, which
includes training in radiation safety, the efficient use of X-ray
systems, and the identification of unauthorized weapons, explosives,
incendiaries, and other dangerous articles. The screening company also
would be required to show that the X-ray systems that it operates meet
the imaging requirements set forth in its approved security program.
These requirements are currently contained in the carrier standard
security programs but would be relocated to the screening standard
security program to accompany the relocation of these requirements.
Under proposed Sec. 111.203(c), screening companies would be
required to inspect individuals' photographic equipment and film
packages without exposure to X-ray or explosives detection systems if
requested by the individuals. Proposed Sec. 111.203(d) would require
that each screening company comply with any X-ray operator duty time
limitations specified in its approved security program.
As will be explained in the detailed proposed rule discussion for
parts 108, 109, and 129, all requirements related to the use of X-ray
systems would also be extended to indirect air carriers and their
screening companies. The proposed Sec. 111.203 requirements above would
also apply to indirect air carriers. All remaining requirements related
to the use of X-ray systems would remain in parts 108 and 129 and be
included in part 109 as carrier responsibilities. These requirements
involve conducting radiation surveys, meeting imaging requirements,
meeting Food and Drug Administration (FDA) standards and compliance
standards regarding FDA defect notices or modification orders, and
meeting other equipment-related requirements.
III.N. Sec. 111.205 Employment standards for screening personnel
Under existing regulations, employment standards for screening
personnel are provided as requirements for air carriers under
Sec. 108.31 (proposed Sec. 108.209), for foreign air carriers under
their model security program (MSP), and for indirect air carriers under
their security program. Since these requirements include standards
regarding the screening personnel to be hired by screening companies,
the FAA proposes to relocate them from part 108, the MSP, and the
IACSSP to part 111, and assign responsibility for them to screening
companies. This would establish one consolidated list of employment
standards for all screeners performing screening in the United States.
The consolidation of all employment standards would impose some
additional requirements on screeners performing screening for air
carriers, foreign air carriers, and indirect air carriers. Under
proposed Sec. 111.205(a)(2), two additional requirements would be added
for screeners performing screening for air carriers and foreign air
carriers, which were incorporated in recent cargo-related security
program amendments. First, under proposed Sec. 111.205(a)(2)(i),
screeners would have to be able to identify the components that might
constitute an explosive or an incendiary. Second, under proposed
Sec. 111.205(a)(2)(ii), screeners would have to be able to identify
objects that appear to match those items described in all current
security directives and emergency amendments. The addition of these
proposals and other proposals below would result in the rearrangement
of the numbering structure of proposed Sec. 108.209(a)(2) (Notice No.
97-12).
Another proposal under Sec. 111.205(a)(2)(iii) would require that
screeners operating both X-ray and explosives detection system
equipment be able to distinguish on the equipment monitors the
appropriate imaging standards specified in the screening companies'
approved security programs. The FAA is proposing to amend this
requirement that already exists in part 108 to include explosives
detection systems and to change the location of all screener employment
standards from the carrier programs to the screening companies'
security programs.
Screeners performing screening for foreign air carriers operating
their own screening checkpoints in the United States theoretically
would have to meet additional standards under this proposal that
currently are not required of them. Specific differences from the
current MSP standards and this proposal are that these proposed rule
requirements would expand the English language requirements, add
education requirements, add specific screener evaluation requirements,
and provide allowances for special circumstances. Most foreign air
carriers, however, use screening checkpoints operated by U.S. air
carriers, and all of these foreign air carriers already voluntarily
comply with the existing 14 CFR part 108 employment standards to be
consistent and to allow for screener shift rotations with screening
checkpoints operated by domestic air carriers.
Screeners performing cargo screening may also have to meet an
additional standard under this proposal that is not currently required
of them. Under proposed Sec. 111.205(a)(1), these screeners would be
required to have high school diplomas, general equivalency diplomas, or
combinations of education and experience that the screening companies
have determined to have equipped the persons to perform the duties of
their positions. No other new standards would be required of screeners
performing cargo screening.
The FAA may revisit the current screener education requirements
after threat image projection (TIP) data becomes available regarding
education level as it relates to screener performance. If it appears
from the data that different employment standards are appropriate, the
FAA would propose such standards for comment and make the supporting
data available to the carriers and screening companies.
In addition to relocating the standards, a proposed requirement
would be added to Sec. 111.205(a)(4) stating that initial and recurrent
training for all screeners shall include screening persons in a
courteous and efficient manner and in compliance with the applicable
civil rights laws of the United States. The statute requires that FAA
rules for passenger screening ensure the courteous and efficient
treatment of passengers by air carriers or foreign air carriers or
agents or employees of air carriers or foreign air carriers (49 U.S.C.
44903(b)(3)(B)). Further, there are a number of laws requiring air
carriers to observe the civil rights of persons (e.g., see 42 U.S.C.
1981, 2000a, and 2000d; and 49 U.S.C. 41310 and 41702). The FAA and the
DOT's Office of the Secretary have received reports that some screeners
were discourteous and might have discriminated against certain
individuals. The FAA proposes to require that in initial and recurrent
training, screeners receive instruction in screening in a courteous and
efficient manner and in compliance with the civil rights laws. For
instance, it would not be appropriate for a screener to subject a
person to increased inspection based on the screener's view that the
person appears to be of an ethnic group that the screener considers of
a higher threat to air transportation. Further, while different methods
are required to screen persons in wheelchairs, persons with implanted
medical devices that
[[Page 577]]
may alarm the metal detector, and other persons with certain
disabilities, screeners are required to be courteous and to avoid
violating the civil rights laws while they conduct the screening. (See,
e.g., 49 U.S.C. 41705 and 14 CFR part 382, and Sec. 382.49 in
particular.) Training would help ensure that screeners are aware of
their duties in this regard.
Proposed Sec. 111.205(a)(5) would require persons with supervisory
screening duties to have initial and recurrent training that includes
leadership and management subjects. In response to noted deficiencies
in training for checkpoint security supervisory personnel and a
determination that they lacked communication skills training,
leadership development, and general supervisory skills training, the
FAA developed the Supervisor Effectiveness Training (SET) Program which
focuses on communication and leadership skills. While the SET program
is intended to serve as a model for teaching these supervisory
subjects, it is not required at this time. However, the FAA intends to
propose for comment specific standards that the leadership and
management training for checkpoint supervisors shall meet in the SSSP,
and the SET Program would meet those standards.
The FAA is seeking comments on whether additional or different
selection and employment standards are appropriate to improve the
screening companies' ability to hire qualified, effective screeners.
III.O. Sec. 111.207 Disclosure of sensitive security information
Certain information related to civil aviation security must be
protected from unauthorized disclosure because it could be used to
attempt to defeat the security system if it falls into the wrong hands.
In Sec. 191.7 the FAA has designated this information as sensitive
security information (SSI). SSI includes information about security
programs, technical specifications of certain screening equipment and
objects used to test screening equipment, and other information. Under
Sec. 191.3, the FAA does not disclose such information. Under
Sec. 191.5, carriers are required to protect SSI from disclosure,
including disclosing it to only those with a need to know.
Some SSI must be revealed to persons being trained to be screeners.
There is a high rate of turnover among screener trainees, however. A
large portion of the trainees do not complete training. It is advisable
to avoid providing SSI to those who will never need it to perform
security duties. The FAA therefore is proposing that the appropriate
steps of the employment history, verification, and criminal history
records checks that air carriers or airport operators are required to
conduct are carried out before trainees are given SSI during training.
Airport operators are required to ensure that persons with
unescorted access to security identification display areas (SIDA) have
their checks completed beforehand (see Sec. 107.31). The checks may be
carried out by the airport operators or the air carriers. Air carriers
are required to ensure that checks are completed on certain persons,
including persons who screen passengers or property that will be
carried into the cabins of aircraft (see Sec. 108.33; to appear as
Sec. 108.221 under Notice No. 97-12). Most persons who screen cargo and
checked baggage are either also qualified to screen persons and
property that will be carried into aircraft cabins, and/or have
unescorted access to SIDA's and therefore will be subject to the checks
in Sec. 107.31 or 108.33.
The checks required under current Sec. 107.31 or 108.33 are in two
parts. In most cases, only part 1 is required. Part 1 includes the
individuals providing certain information on applications, with the air
carriers or airport operators verifying selected parts of that
information. If certain conditions (triggers) are discovered during
part 1 (such as an individual is unable to support statements made on
his or her application form), the air carriers or airport operators
shall accomplish part 2 of the checks, which involves criminal history
records checks based on fingerprints.
The FAA proposes under Sec. 111.207 that each screening company
would be required to ensure that no SSI is provided to a screener
trainee who will be required to have an employment history verification
until part 1 of the trainee's check is completed. If the individual has
a history of a disqualifying crime set forth in Sec. 107.31 or 108.33,
that individual would not be permitted to screen persons or property to
be carried into aircraft cabins and thus would not be eligible to be a
screener. Under the statute, if a part 2 criminal history records check
is needed, an individual may be employed as a screener until his or her
check is completed if the person is subject to supervision (see 49
U.S.C. 44936(a)(1)(D)). This means that the person would be permitted
to receive SSI unless or until his or her records check reveals a
disqualifying crime.
The FAA considered duplicating these employment history and
verification requirements in proposed part 111 for screening companies
but did not because the statute makes the air carriers responsible for
the checks; only the air carriers, not the screening companies, can
obtain the criminal histories that may be called for under proposed
Sec. 108.221 (current Sec. 108.33). If an airport operator or an air
carrier completes part 1, the screening company would have to receive
confirmation from one of them indicating that it has been completed.
Many airport operators or air carriers authorize screening companies to
obtain applicants' part 1 employment history information and verify the
applicants' most recent 5 years of employment history. In these
situations, the airport operators or air carriers are responsible for
ensuring that the screening companies are complying with these
requirements.
III.P. Sec. 111.209 Screening company management
This proposed section would require that each screening company
have sufficient qualified management and technical personnel to ensure
the highest degree of safety in its screening. This is based on a
requirement in Sec. 119.65(a) that applies to air carriers operating
under part 121.
Proposed Sec. 111.209(b) would require that each screening company
have a screening performance coordinator (SPC). The SPC would, at a
minimum, be responsible for monitoring the quality and performance of
screening at each screening location and ensuring that corrective
action is taken to remedy any performance deficiencies. The SPC would
also serve as the primary point of contact for the company for FAA and
carrier communications regarding security-related issues. In most cases
the FAA anticipates that the SPC's would be responsible for managing
the screening operations for their companies. Management experience,
technical training, and knowledge of screening-related information
would be critical to SPC's effectiveness in their positions.
Under the proposed rule, an SPC would be required to have
successfully completed the initial security screener training course,
including the X-ray interpretation portion of the course and the end-
of-course FAA exam. The SPC's completion of initial security screener
training would ensure that he or she would have formal training in the
screener's job. The SPC would not be required to complete the on-the-
job portion of the training, because he or she would not actually
perform required
[[Page 578]]
screening, and it would not be necessary for the SPC to accomplish the
same level of proficiency as that required of a screener. The FAA
requests comments regarding which portions of the training that the
SPC's should be required to successfully complete in order to manage
screening operations effectively.
Furthermore, to ensure that the SPC's have management skills and
practical experience in the aviation security environment necessary to
act as SPC's, proposed Sec. 111.209(b)(1)(i) would require that each
SPC have at least 1 year of supervisory or managerial experience within
the last 3 years in a position that exercised control over any aviation
security screening required under part 108, 109 or 129. This
requirement is intended to provide SPC's with solid experience and
knowledge bases regarding managing and coordinating aviation screening
operations, including knowledge to apply new procedures and
technologies. The proposal would include exceptions in Sec. 111.209(d)
for those who screen only cargo for indirect air carriers (IAC's) under
part 109. During the 3-year period following the publication of the
final rule, a person who does not satisfy the experience requirements
of Sec. 111.209(b)(1)(i) would be able to serve as SPC for IAC
screening operations if authorized to do so by the Administrator. IAC's
have not been involved in screening for very long, and there might be
few individuals who could meet this standard at first. In deciding to
grant exceptions, the FAA would consider such factors as individuals'
other management experience, nonmanagement screening experience or
training, and security experience other than aviation screening.
The name and business address of an SPC would be listed in the
screening company's operations specifications. If a change in SPC's or
a vacancy occurs, the screening company would be required to notify the
Administrator within 10 days of the change under proposed
Sec. 111.209(b)(2).
Under proposed Sec. 111.209(c), each SPC would be required to have
a working knowledge of parts 111 and 191 and part 108, 109, or 129, as
applicable; his or her screening company's security program; his or her
screening company's operations specifications; relevant statutes; and
relevant technical information or manuals regarding screening
equipment, security directives, advisory circulars, and information
circulars on aviation security. This proposed requirement would help to
ensure that each SPC has a satisfactory understanding of the
fundamental regulatory and statutory requirements for screening
operations and that he or she understands the challenges involved with
screening. Well-trained, experienced SPC's would be better able to
manage safe, effective, professional screening operations. These
requirements are based on the management requirements in
Sec. Sec. 119.65-119.71 for air carriers. The requirements are
consistent with comments received on the ANPRM that stated that
management personnel should be required to have aviation screening
experience, training, and knowledge.
III.Q. Sec. 111.211 Screening company instructor qualifications
As discussed in II.H., it is increasingly important that screeners
be well qualified and receive proper training from qualified
instructors. Under proposed Sec. 111.211, screening company instructors
would have to have a minimum of 40 hours of actual experience as
security screeners making independent judgments and pass the FAA
screener knowledge-based and performance tests for each type of
screening to be taught and for the procedures and equipment for which
the instructors would be providing training. Each instructor would also
have to be briefed regarding the objectives and standards of each
course taught.
The emphasis with this proposal is to ensure that screening
companies employ instructors with important minimum qualifications.
Requiring screening instructors to have actual experience as screeners
would allow them to better understand the challenges involved in
screening and to relay helpful, realistic advice and information to
screener trainees. Requiring instructors to pass the FAA screener
knowledge-based and performance tests in each area of screening taught
would help ensure that the instructors have attained the knowledge and,
as applicable, the skills and abilities needed to be effective as
instructors. The FAA expects that screening companies would hire
instructors who are knowledgeable about the screening process, who are
able to demonstrate correctly screening procedures to trainees, and who
can effectively and thoroughly communicate screening-related objectives
and lesson plans to trainees. Conducting on-the-job training would keep
instructors proficient regarding screening technologies and procedures.
III.R. Sec. 111.213 Training and knowledge of persons with screening-
related duties
The language in proposed Sec. 111.213 mirrors parts of the proposed
language contained in Sec. 108.227 for air carriers (Notice No. 97-12).
Under proposed Sec. 111.213(a), no screening company would be permitted
to use any screener, screener-in-charge, or checkpoint security
supervisor unless that person had received training as specified in its
approved screening company security program, including the
responsibilities in Sec. 111.105. Under Sec. 111.213(c), each screening
company would be required to ensure that screeners, screeners-in-
charge, or checkpoint security supervisors have knowledge of the
provisions of part 111, the screening company's security program, and
any applicable security directive (SD), emergency amendment (EA), and
information circular (IC) information to the extent that such
individuals need to know this information to perform their duties.
Proposed Secs. 111.213(b) would require that each screening company
submit its training program for screeners, screeners in charge, and
checkpoint security supervisors to the Administrator for approval. Each
training program should address the subject material contained in the
security program's training and testing standards. The FAA proposes to
create a performance-based training environment where screening
companies would be expected to train their screening personnel to pass
specific tests developed by the FAA. The FAA proposes to do away with
the hourly training requirements for initial and recurrent training and
give screening companies the flexibility to train their screeners using
their own FAA-approved training programs. Screening companies would be
responsible for ensuring that their trainees are able to pass an FAA
knowledge-based and, if applicable, X-ray interpretation test at the
end of their initial training and that their screening personnel are
meeting performance standards thereafter (see proposed Sec. 111.215 for
discussion regarding FAA tests). The FAA testing standards would
encompass the subjects currently outlined in the Air Carrier Standard
Security Program and might include additional standards regarding, for
example, operating new screening technologies. The testing standards
would differ for tests of persons who will screen persons and
accessible property, checked baggage, and cargo, because each type of
screening has some different features. As discussed above,
[[Page 579]]
the FAA is developing computer-based instruction and has made this
available for use by the industry.
In addition to the testing standards, the Screening Standard
Security Program also would contain a list of subjects and types of
training that the FAA would require that screening companies brief and
demonstrate to their trainees. Trainees might not be tested on all of
the subjects, but the information would be critical to their positions
and performance. Examples of training standards would be demonstrating
effective handwanding and manual search techniques, demonstrating a
variety of improvised explosive device configurations, and briefing
trainees on the definition of sensitive security information (SSI) and
why SSI must be protected.
III.S. Sec. 111.215 Training tests: requirements
This proposed section would introduce several new requirements all
related to testing screeners at the completion of their classroom
training sessions. The provisions would impose more control and
consistency in the training environment, emphasize the importance of
proper training and testing, and promote professionalism by both
trainees and instructors. The proposals under this section are similar
to other FAA regulations related to testing, such as those required for
pilots and flight instructors under 14 CFR part 61. They are designed
to help ensure that screener trainees have attained the knowledge and
skills that they need to perform their jobs effectively.
Currently, air carriers can design and administer their own written
tests for screeners. The tests usually consist of approximately 20
basic multiple-choice questions (the knowledge-based portion), and the
air carriers have latitude in choosing the subject matter to be
addressed and in designing the questions. The performance-based portion
of the tests often consists of X-ray interpretation scenarios using
overhead slides.
Proposed Sec. 111.215(a) would require that each screener trainee
pass one standardized FAA screener readiness test for each type of
screening to be performed (persons, accessible property, checked
baggage, and cargo) and for the procedures and equipment to be used
prior to beginning on-the-job training. Since most screeners conduct
screening of persons, accessible property, and checked baggage, the FAA
envisions designing one test to address all of these types of
screening. Since cargo screening involves some unique factors and does
not involve screening persons, the FAA would most likely develop a
separate test for cargo screeners. These standardized tests would
address the traditional methods of screening and equipment used to
conduct screening, such as metal detector devices, hand wand devices,
and X-ray systems. The standardized tests might also encompass such
explosives detection devices as explosives trace detection (ETD)
devices. For more complex explosives detection equipment, such as
explosives detection systems (EDS), an additional FAA knowledge-based
and performance test would be required before the screeners could
operate that equipment.
Proposed Sec. 111.215(b) would require that each screening company
ensure that each screener trainee completes 40 hours of on-the-job
training and passes an FAA on-the-job training test before exercising
independent judgment as a screener. Screeners would have to
successfully pass that test before qualified supervisory-level
individuals could sign the certification statements in the screeners'
training and qualification records. The FAA envisions that this on-the-
job training test would be a computer-based test that is similar to the
image interpretation portion of the FAA screener readiness test, but
that it might require a higher score. The test would supplement all
realistic carrier testing required before screeners are permitted to
make independent judgments. Applicants for pilot certificates under
part 61 and mechanic certificates under part 65 must also pass FAA
knowledge and performance tests.
Under proposed Sec. 111.215(c), each screening company would be
required to ensure that each screener passes an FAA review test at the
conclusion of his or her recurrent training. The written tests that are
currently administered at the conclusion of recurrent training are
required by the FAA and are designed by the carriers or screening
companies; screening companies would now be required to provide their
screeners with FAA recurrent tests, and carriers would be required to
monitor the testing and grading process.
The specific requirements and guidelines for the tests proposed
under Sec. 111.215(a), (b), and (c) would be outlined in the screening
companies' security programs. Using the same tests and grading them the
same way throughout the country would ensure that trainees all meet the
same, appropriate standards before making independent judgments and
would promote uniformity among all screeners.
Currently, many screening companies administer end-of-course
knowledge-based tests to screener trainees in a paper format and
administer the performance tests to trainees using overhead slides.
This increases opportunities for cheating, because many screener
trainees receive the same versions of the tests and because classes as
a whole are usually interpreting the X-ray images at the same time.
Instances have occurred where trainees or instructors have helped other
trainees answer test questions or interpret X-ray images.
Proposed Sec. 111.215(d) would address this issue by requiring that
each screening company use an FAA computer-based test to administer the
FAA tests for screener readiness, on-the-job training, and recurrent
training unless otherwise authorized by the Administrator. This
proposal would standardize the screener testing process, provide a
unique mix of challenging and relevant test questions for each
screener, discourage the sharing of test information, provide X-ray
images for the X-ray interpretation portion of the test that are more
like those on an actual X-ray machine, and automatically score the
trainees' responses. The questions and interpretation images would be
varied for each trainee (making it impossible to copy from one
another), but would always address the key subjects contained in the
testing standards. The FAA is currently developing these automated
tests based on existing requirements for screeners. The tests are being
designed to be user friendly and easily loaded onto standard personal
computers to minimize costs and maximize flexibility.
Proposed Sec. 111.215(e) would require each screening company to
ensure that each test that it administers under Sec. 111.215(a) and (c)
is monitored by an employee of the carrier for which it screens. When
the screening company plans to administer a test to screener trainees
it would be responsible for requesting that the applicable carrier(s)
provide a test monitor during the entire testing and grading process.
Each applicable carrier would be responsible for providing a test
monitor upon request and ensuring that the test monitor meets the
qualifications contained in proposed Sec. 108.229, 109.205, or
129.25(p) and the supporting requirements in the screening company's
security program. (See section IV.I. regarding monitoring of screener
training tests and sharing of carrier responsibilities.)
III.T. Sec. 111.217 Training tests: cheating and other unauthorized
conduct
Proposed Sec. 111.217 is included to emphasize that cheating is not
permitted on any training test
[[Page 580]]
administered to or taken by screening personnel, to include test
monitors, screeners, screeners-in-charge, checkpoint security
supervisors, and screening performance coordinators. Under proposed
Sec. 111.217, no person may copy or intentionally remove a knowledge-
based or performance test under this part; give to another or receive
from another any part or copy of that test; or give help on that test
to or receive help on that test from any person during the period that
test is being given. In addition, no person may take any part of that
test on behalf of another person; use any material or aid during the
period that test is being given; or intentionally cause, assist, or
participate in any act prohibited by this paragraph except as
authorized by the Administrator. These requirements are similar to the
testing regulations set forth in Sec. 61.37 for pilots. These
prohibitions apply ``except as authorized'' by the FAA, to provide for
the possibility that in the future the FAA would authorize such conduct
as the use of certain outside materials. For instance, in pilot exams,
the applicants may bring flight computers to perform required
calculations.
Any instances reported to the FAA involving allegations that
screening companies or screening company employees are permitting
cheating on tests would be investigated, and those companies or
individuals involved in the incidents could be held accountable. It
would be particularly important that the test monitors explain the
consequences of cheating on tests to their trainees and be alert to any
occurrences of cheating. If an instance of cheating occurs, a test
monitor would be required to declare the test invalid and inform
appropriate screening company and carrier management officials of the
incident. FAA special agents also would regularly monitor screening
company testing.
III.U. Sec. 111.219 Screener letter of completion of training
Throughout this proposal, the FAA has sought ways to more
effectively train, challenge, and motivate screeners and their
supervisors. The following proposal would provide screeners and
supervisors with verification of their training, and may provide a
modest means of motivation by encouraging pride in the employees
regarding their accomplishments. Under proposed Sec. 111.219, each
screening company would issue letters of completion of training to
screeners, screeners-in-charge (SIC), and checkpoint security
supervisors (CSS) upon each successful completion of approved initial,
recurrent, or specialized courses of training. Specialized training
would encompass, for example, training for explosives detection
equipment. These letters of completion would not serve as certification
for screeners, CSS's, and SIC's, but would provide them with records of
their specific training accomplishments. The FAA believes that
requiring screening companies to issue letters of completion to
screeners and screener supervisors for their successful completion of
training would help enhance the professionalism of this critical
security job.
Each letter of completion of training would be required to contain
the trainee's name, course of training completed and date of
completion, name of the screening company providing the training, and a
statement signed by a GSC, CSS, or SIC indicating that the trainee has
satisfactorily completed each required stage of the approved course of
training and the associated tests. Each letter of completion would also
be required to indicate the types of screening that the screener was
trained to perform (persons, accessible property, checked baggage, and/
or cargo) and the equipment and methods of screening that the screener
was trained to operate and carry out. Examples of equipment would be X-
ray systems and EDS. An example of a method of screening would be a
manual search.
Screening companies could include letters of completion of training
as part of their required screener and screener supervisor training and
qualification records, but the letters would not serve as substitutes
for the remaining records requirements.
III.V. Sec. 111.221 Screener and supervisor training records
Under proposed Sec. 111.221, a screening company would be required
to forward training records for a screener, screener-in-charge, or
checkpoint security supervisor to another screening company upon the
request of the employee. The other screening company would be able to
use the employee without fully retraining him or her if it provides
training on the procedures that differ from those of the previous
company. In the event that a screening company ceases operations at a
site, it would also be required to return its original screener records
to the carrier for which it was conducting screening. These
improvements would increase mobility for screeners, screeners-in-
charge, and checkpoint security supervisors. They would also ensure
that training documentation would not be lost if a screening company
leaves a location. These proposed requirements are consistent with
several comments received on the ANPRM which stated that making
screener personnel and training files transferable would enhance
professionalism.
Proposed Sec. 111.221(f), in particular, would require that
training, testing, and certification records be made available promptly
to FAA special agents upon request and be maintained for a period of at
least 180 days following the termination of duty for a screener,
screener-in-charge, or checkpoint security supervisor. Test records
would include all tests to which the employee was subjected, not just
those satisfactorily completed. Carriers currently are required to
maintain these records under their security programs. Including this
requirement as part of proposed part 111 would result in transferring
the responsibility to maintain the records to screening companies, who
often already maintain the records, and would standardize the length of
time that records have to be maintained.
III.W. Sec. 111.223 Automated performance measurement and standards
As discussed in section II.I., the FAA is proposing to enhance the
FAA's, carriers', and screening companies' abilities to measure the
performance of screening locations and to set FAA standards for their
operation. Under proposed Sec. 111.223(a), each screening company would
be required to use a threat image projection (TIP) system for each X-
ray and explosives detection system that it uses as specified in its
security program to measure the performance of individual screeners,
screening locations, and screening companies. It is important to note
that this requirement would not require screening companies to install
physically the TIP systems on the X-ray systems that they operate.
Rather, it would require screening companies to operate the TIP systems
that the carriers have installed in accordance with the procedures
contained in their screening company security programs. The security
program procedures would specify usage procedures, log on/log off
procedures for each screener, and any data collection requirements.
Proper operation of the TIP units and collection of data would be
critical to measuring accurately the performance of screening
companies.
Under proposed Sec. 111.223(b), each screening company would be
required to meet the performance standards set forth in its security
program. These
[[Page 581]]
performance standards would be established through the notice and
comment procedures for amending security programs. The FAA envisions
establishing a range of performance that all screening companies would
be required to fall within to be considered effective at detecting
possible threats. If a screening company falls short of the minimum
performance standards, it may be required to carry out additional
security measures to maintain the required level of security, depending
on the circumstances involved, and could ultimately lose its FAA
certification if its performance does not improve (see discussion of
possible additional security measures in section II.I.).
The FAA expects that each screening company would regularly monitor
its overall performance as well as its individual screeners'
performance and take corrective actions as necessary. The FAA also
expects that each carrier that contracts with a screening company would
regularly monitor that screening company's performance. These oversight
responsibilities would be outlined in the carriers' security programs,
and the carriers would be responsible for working with their screening
companies to remedy any performance problems.
The FAA would collect and analyze screening company performance
data regularly to monitor performance and to determine whether
screening companies and carriers are in compliance with the required
performance standards. The FAA would also closely review data regarding
screening companies' performance at the time of initial certification
(if historical performance data are available) and before each
subsequent certification renewal.
The FAA proposes to require that TIP systems be installed on X-ray
and explosives detection systems at the U.S. screening locations
specified in the carriers' security programs. The FAA proposes to
require that TIP systems be installed initially at the busiest
screening locations. The specific screening locations affected by this
requirement would be described in the carriers' security programs. The
FAA then would phase in requirements to install TIP systems at the
remaining U.S. screening locations where property is screened. The
process of phasing in requirements for TIP systems would allow the FAA
to address promptly the higher threat airports and would allow
realistic timeframes for updating older equipment to make it TIP-
compatible. The FAA already has installed TIP systems at many of the
Nation's major airports and will advocate additional installations at
other airports and cargo facilities. During the phase-in process, the
FAA will continue to measure screening companies' performance through
testing and assessments.
IV. Proposed Revisions to Parts 108, 109, and 129
The following section discusses the detailed rule proposals for
parts 108, 109, and 129. The proposed additions for part 109 have been
organized in a new regulatory format similar to that of Notice No. 97-
12 for part 108, for clarity and consistency.
IV.A. Secs. 108.201(h); 109.203(a); and 129.25(k) Certification
requirement
Proposed new Sec. 108.201(h) would require that each carrier
required to conduct screening of persons and property under a security
program hold a screening company certificate issued under part 111 if
the carrier will conduct the screening or use another screening company
certificated under part 111 to conduct such screening.
Proposed new Sec. 109.203(a) would require that each indirect air
carrier that elects to conduct screening of property under a security
program hold a screening company certificate issued under part 111 or
use another screening company certificated under part 111 to conduct
such screening.
Proposed Sec. 129.25(k) would require that each foreign air carrier
required to conduct screening of persons and property under a security
program either hold a screening company certificate issued under part
111 or use a screening company certificated under that part for
screening locations within the United States.
Proposed Sec. 108.201(h), 109.203(a), and 129.25(k) would all state
that FAA-certified canine teams are not required to be operated by
certificated screening companies. This statement is included to provide
clarification for situations where FAA-certified canine teams are used
to conduct screening.
IV.B. Secs. 108.5 and 109.5 Inspection authority
Proposed Sec. 108.5, Inspection authority, would be amended to
require that each air carrier also allow the Administrator, including
FAA special agents, to make any inspections or tests at any time or
place to determine screening company compliance with the new part 111
of this chapter and the carrier's screening company security
program(s). Proposed Sec. 108.5 also would be amended to require that
an air carrier provide evidence of compliance with the new part 111 of
this chapter and its screening company security program(s) at the
request of the Administrator.
Similar inspection authority language would also be proposed as
Sec. 109.5 to be consistent with the requirements in Secs. 108.5 and
119.59. This proposed parallel section would not be a new requirement,
because it is already required by statute. Rather, the proposed section
is intended to resolve any confusion regarding the FAA's statutory
authority to conduct inspections and tests under title 49, U.S.C.,
Subtitle VII.
IV.C. Secs. 108.103(b); 109.103(b); and 129.25(c) Security program
form, content, and availability
Proposed Sec. 108.103 in Notice No. 97-12 sets forth the form,
content, and availability of security programs required under part 108.
Proposed Sec. 108.103(b) of Notice No. 97-12 lists items to be included
in the security programs. The proposed rule in this notice would add to
that list of items in Notice No. 97-12 two new items: a description of
how an air carrier would provide oversight to each screening company
performing screening on its behalf, and a description of how the air
carrier would evaluate and test the performance of screening. The
proposed rule would also add comparable requirements as proposed
Secs. 109.103(b)(4) and (5) and 129.25(c)(5) and (6). These
requirements also would apply to indirect air carriers that elect to
perform the screening functions themselves.
The proposed requirement regarding a description of carrier
oversight is based on proposed Secs. 108.201(j), 109.201(c), and
129.25(m), which would require that each carrier required to conduct
screening under parts 108, 109, and 129 provide oversight to each
screening company performing screening on behalf of the carrier. The
specific oversight requirements would be included in the carrier's
security programs.
The proposed requirement regarding a description of testing and
evaluation procedures would include the process that the carrier would
use to collect and evaluate automated screener and screening company
performance data on a regular basis as required in proposed
Sec. 111.223. Requiring the air carriers, indirect air carriers, and
foreign air carriers to provide these descriptions would help to ensure
that the carriers adequately oversee and manage the performance of
screening companies employed by them.
In addition to adding the new requirements above to part 109, the
proposal would rename the current Sec. 109.3 as Sec. 109.103 and
reorganize it to parallel Sec. 108.103. Proposed
[[Page 582]]
Sec. 109.103(a) would state several overall requirements for the
indirect air carrier security program. All of the requirements are
stated in the current Sec. 109.3 with the exception of one new
requirement. This proposed addition would require indirect air carriers
to state in their programs that upon receipt of an approved security
program or security program amendment from the FAA, the indirect air
carriers shall acknowledge receipt of it to the Assistant Administrator
in writing and signed by the indirect air carriers or persons delegated
authority in this matter within 72 hours. This is a proposed
requirement in Sec. 108.103 and would also be applicable to indirect
air carriers.
Section 109.103(b) would list all of the items that the indirect
air carrier security programs shall include. In addition to adding the
two description requirements to Sec. 109.103(b), the proposal would
also require that the security programs include the following: the
procedures and descriptions of the facilities and equipment used to
perform screening functions specified in Sec. 109.201; and the
procedures and descriptions of the equipment used to comply with the
requirements of Sec. 109.207 of this part regarding the use of X-ray
systems should indirect air carriers elect to perform screening
functions. These requirements would be added to support the new cargo
screening requirements, with an emphasis on X-ray systems.
Section 109.103(c) would describe how the indirect air carriers
should maintain their programs and to whom they should make security
program information available. All of these requirements already are
required by the current Sec. 109.3.
IV.D. Secs. 109.105 and 129.25(e) Approvals and amendments of security
programs
The proposal would reorganize the current regulatory text of
Secs. 109.5 (proposed Sec. 109.105) and 129.25(e)(2), (3), and (4) to
clarify the requirements and make them consistent with the organization
of Sec. 108.105. The only substantive changes would affect indirect air
carriers under proposed Sec. 109.105(c) and (d). Section 109.105(c)
would allow indirect air carriers to petition the Administrator to
reconsider a notice of amendment if the petitions are submitted no
later than 15 days before the effective date of the amendment. Section
109.105(d) would allow indirect air carriers the opportunity to file
petitions for reconsideration under Sec. 109.105(c).
IV.E. Secs. 108.201(i), (j), and (k); 109.203(b), (c), and (d); and
129.25(l), (m), and (n) Responsibilities of carriers and screening
companies
Proposed new Secs. 108.201(i), 109.203(b), and 129.25(l) would
require each carrier to ensure that each screening company performing
screening services on the carrier's behalf do so consistent with part
111, the screening company's security program, and the screening
company's operations specifications. Proposed new Secs. 108.201(j),
109.203(c) and 129.25(m) would require each carrier required to conduct
screening to oversee each screening company performing screening on its
behalf as directed in the carrier's security program. The requirements
for oversight would all be listed in the ACSSP, MSP, and IACSSP. For
example, the security programs may require periodic audits by the
carriers to look at different aspects of the screening companies'
operations. The frequency of such audits and the specific aspects to be
audited would be described in the security programs and could be
tailored to the different types of screening operations conducted. The
FAA recently issued an amendment to the ACSSP that meets the intent of
this proposal for air carriers. The proposed amendment strengthens
checkpoint auditing and testing requirements for ground security
coordinators.
As part of their oversight responsibilities, each carrier required
to conduct screening under a security program would be required under
proposed Secs. 108.201(k), 109.203(d), and 129.25(n) to maintain at
least one complete copy of each of its screening companies' security
programs at its principal business office; have available complete
copies or the pertinent portions of its screening companies' security
programs or appropriate implementing instructions at each location
where the screening companies conduct screening for the carrier; and
make copies of its screening companies' security programs available for
inspection by an FAA special agent upon request. Each carrier would
also be required to restrict the distribution, disclosure, and
availability of information contained in its screening companies'
security programs to persons with a need to know as described in part
191 of this chapter, and refer requests for such information by other
persons to the Administrator.
These proposed requirements are consistent with several comments on
the ANPRM that stated that air carriers must ensure that the screening
companies are conducting screening on their behalf in compliance with
the applicable security programs and all other regulations. Some
commenters also stated that while air carriers should retain
responsibility for checkpoint screening activities, certificated
screening companies should be directly responsible for their own
regulatory compliance.
IV.F. Secs. 108.201(l) and 129.25(o) Public notification regarding
additional security measures
As discussed in section III.W., the FAA envisions that performance
standards eventually may be established using TIP data. If a screening
company were to fall short of the minimum standards it may be required
to carry out additional measures to maintain the required level of
security. These measures may result in slowing the screening operation
at that location. Proposed Secs. 108.201(l) and 129.25(o) would be
added to require that each carrier required by the FAA to implement
additional security measures to maintain system performance notify the
public by posting signs at affected locations as specified in its
security program. This would explain to the public why it might take
longer than usual for screening to be accomplished and why baggage may
be subjected to additional searches. This is further discussed in
section II.I.
IV.G. Secs. 108.205; 109.207; and 129.26 Use of X-ray systems
Proposed Sec. 108.205 would be amended to require that air carriers
use X-ray systems in accordance with their approved security programs
and their screening companies' approved security programs. Both
programs are included here, because the air carriers would be required
to ensure that the X-ray systems meet the standards for cabinet X-ray
systems issued by the Food and Drug Administration (FDA), have had
radiation surveys as required, have met the required imaging
requirements at the time of initial installation and when the systems
are relocated, are in full compliance with any defect notices or
modifications orders issued for those systems by the FDA, and meet
other equipment-related requirements as described in proposed
Sec. 108.205. However, an air carrier would also be responsible for
ensuring that its screening companies comply with the X-ray-related
requirements to be relocated to the Screening Standard Security
Program. Specifically, Sec. 108.205(a)(2), which requires that a
program for initial and recurrent training of operators of X-ray
systems be established, would be relocated to
[[Page 583]]
Sec. 111.203. Screening companies would assume responsibility for
training their employees under this proposed rule. Section
108.205(a)(3) would then be renumbered to read (a)(2) and would be
revised to indicate that the screening companies' security programs
would contain the imaging requirements. Also, Sec. 108.205(h), which
would require each air carrier to comply with X-ray operator duty time
limitations, would be relocated to Sec. 111.203.
A new paragraph (h) would be added to state that unless otherwise
authorized by the Administrator, each air carrier shall ensure that
each X-ray system that it uses have a functioning threat image
projection (TIP) system that meets the standards set forth in its
security program. The FAA has worked with some X-ray system vendors to
develop TIP systems and acceptable TIP standards and will continue to
do so; these TIP systems currently are being used in several U.S.
airports.
The FAA, carriers, and screening companies would use the data
gathered from the TIP systems to measure performance of the screening
location and screeners, as described in section II.I. It therefore is
necessary that the TIP systems be functioning properly and that the
carriers use them as specified in their screening companies' security
programs at all times unless they obtain amendments from the
Administrator. Such amendments could be approved by the FAA for a
limited time period if, for example, there were not enough X-ray
systems with functioning TIP systems available for necessary screening
operations at particular screening locations.
Paragraph (h)(1) would state that automated X-ray TIP data will be
collected as specified in the air carriers' security programs and in
the responsible screening companies' security programs. Paragraph
(h)(2) would state that air carriers shall make X-ray TIP data
available to the FAA upon request and shall allow the FAA to download
TIP data upon request.
Section 129.26 would contain proposed amendments similar to those
described previously for Sec. 108.205. Section 129.26(a)(3), which
requires that a program for initial and recurrent training of operators
of X-ray systems be established, would be relocated to Sec. 111.203.
Screening companies would assume responsibility for training their
employees under this proposed rule. Section 129.26(a)(5) would then be
renumbered to read (a)(3) and would be amended to indicate that the
imaging requirements for X-ray systems will now be set forth in the
approved Screening Standard Security Program rather than in the foreign
air carriers' security programs.
Currently, Sec. 129.26(a)(4) requires foreign air carriers using X-
ray systems to establish procedures to ensure that all operators of the
systems be provided with individual personal dosimeters to measure
exposure to X-rays and that they evaluate them every month. The FAA is
proposing to omit this requirement, as was also proposed in Notice No.
97-12 for part 108. In 1975, the FAA first adopted rules regarding the
use of X-ray machines to screen accessible property. At that time, the
use of X-ray systems for this purpose was relatively new, and the FAA
took a number of steps to evaluate the safety and environmental impacts
of these systems. Although the experts who submitted comments did not
find it necessary for operators of the equipment to wear dosimeters,
the FAA's rules included such a requirement. The FAA now proposes to
remove this requirement based on the determinations of those agencies
with the expertise.
The FAA proposes to add a new paragraph as Sec. 129.26(a)(4) that
would parallel the proposed new paragraph (h) in Sec. 108.205.
Paragraph (a)(4) would state that unless otherwise authorized by the
Administrator, each foreign air carrier shall ensure that each X-ray
system that it uses has a functioning threat image projection system
that meets the standards set forth in its security program. The FAA,
carriers, and screening companies would use the data gathered from the
TIP systems to measure performance of the screening location and
screeners, as described in section II.I. Paragraph (a)(4)(i) would
state that automated X-ray TIP data will be collected as specified in
the SSSP and the MSP. Paragraph (a)(4)(ii) would state that foreign air
carriers shall make X-ray TIP data available to the FAA upon request
and shall allow the FAA to download their TIP data upon request.
Proposed Sec. 109.207 would be added to provide regulations on the
use of X-ray systems consistent with the requirements of proposed
Sec. 108.205 and Sec. 129.26. These requirements are a slightly edited
version of rule language in proposed Sec. 108.205, with minor
differences related to the unique nature of screening cargo.
IV.H. Secs. 108.207 and 129.28 Use of Explosives Detection Systems
Because most screening-related procedures would be moved to the
Screening Standard Security Program, proposed Sec. 108.207 would be
reworded to state the following: When the Administrator shall require
by an amendment under Sec. 108.105 of this part, each air carrier
required to conduct screening under a security program shall use an
explosives detection system that has been approved by the Administrator
to screen checked baggage on each international flight in accordance
with the air carrier's and its screening company security programs.
This proposal would designate this revised paragraph as paragraph
(a), and create a paragraph (b) to state that unless otherwise
authorized by the Administrator, each air carrier shall ensure that
each explosives detection system that it uses has a functioning TIP
system that meets the standards set forth in its security program. The
FAA is working with explosives detection system vendors to develop TIP
systems and to establish acceptable standards similar to those being
developed for X-ray systems. The FAA would use the data gathered from
the TIP systems to measure performance of screening locations and
screeners, as described in section II.I. Paragraph (b)(1) would state
that automated explosives detection system TIP data will be collected
as specified in the air carriers' and screening companies' security
programs. Paragraph (b)(2) would state that air carriers shall make
explosives detection system TIP data available to the FAA upon request
and shall allow the FAA to download their TIP data upon request.
A new Sec. 129.28 would also be added to part 129 to extend the TIP
requirements for explosives detection systems to foreign air carriers.
The language in this proposed addition would be similar to the proposed
revised language for Sec. 108.207 but would require foreign air
carriers to comply with their security programs and their screening
companies' security programs.
IV.I. Secs. 108.229, 109.205, and 129.25(p) Monitoring of Screener
Training Tests
Proposed new Secs. 108.229, 109.205, and 129.25(p) would require
that each carrier monitor each screener training test required under
Sec. 111.215(a) and (c) for all screening companies that conduct
screening on its behalf in accordance with its security program. As
discussed in section II.H., this proposed requirement is intended to
increase carrier involvement with the training and testing processes
and to help deter possible cheating. It is one of many proposals in
this NPRM intended to emphasize how critical it is that screeners
individually demonstrate a fundamental knowledge of screening-related
information and that they meet
[[Page 584]]
the standards that are needed for them to perform their screening
responsibilities effectively and without inappropriate assistance.
The FAA does not intend to impose unrealistic burdens on carriers
with this requirement. In a situation where multiple carriers contract
with one screening company, one carrier could be designated to monitor
the screener tests, or the responsibility could be rotated among all of
the responsible carriers. The FAA is not proposing to require that
carriers monitor the tests under proposed Sec. 111.215(b) because of
the logistical difficulties involved with screeners' completing their
40 hours of on-the-job training at varied times. In this way, screening
companies would have added flexibility in administering these automated
on-the-job training tests to their screening personnel.
Each test monitor would be required to meet specific
qualifications, which are listed in the three proposed carrier
sections. A test monitor would have to be an employee of a carrier who
is not a contractor, instructor, screener, screener-in-charge,
checkpoint security supervisor, or other screening company supervisor.
However, if the carrier is unable to provide a test monitor who meets
these requirements, it could seek an amendment from the FAA allowing it
to use one or more test monitors who do not meet the qualifications
requirements. Requiring that monitors be employees of the carriers
would prevent carriers from designating contracted screening company
employees as test monitors, resulting in increased carrier involvement
with monitors who are independent from the screening companies.
Carriers could designate any qualified carrier employees as test
monitors, including ground security coordinators. In addition to the
qualifications requirement, test monitors would be required to be
familiar with the testing and grading procedures contained in their
screening companies' security programs and would be required to monitor
the procedures as specified in the security programs.
IV.J. Additional Proposed Requirements to Parts 108, 109, and 129
Proposed Sec. 109.1, ``Applicability,'' would revise current
Sec. 109.1 to clarify and simplify the applicability for the part. The
proposal would state that Sec. 109.1 prescribes aviation security rules
governing each indirect air carrier (IAC) engaged indirectly in the air
transportation of property.
Proposed Sec. 109.3, ``Definitions,'' would define the term
``indirect air carrier'' to clarify its meaning for the purpose of part
109.
Proposed Sec. 109.7, ``Falsification,'' would be a new section in
part 109. This section would be added to be consistent with the
falsification requirements in proposed Sec. 108.7.
Proposed Sec. 109.101, ``Adoption and implementation,'' would be
created to emphasize the requirement for each indirect air carrier to
adopt and carry out a security program that meets the requirements of
Sec. 109.103. Creating this separate section would also make the
statement of this requirement consistent with the ``Adoption and
implementation'' section in Sec. 108.101.
Proposed Sec. 109.201, ``Screening of Cargo,'' would be added to
clarify under paragraph (a) that each indirect air carrier that elects
to conduct screening under a security program shall use the procedures
included and the facilities and equipment described in its approved
security program and its screening company approved security program(s)
to inspect cargo and prevent the carriage of explosives or incendiaries
onboard any aircraft. Proposed Sec. 109.201(b) would be added to
clarify that each indirect air carrier that elects to conduct screening
under a security program shall detect and prevent the carriage of
explosives or incendiaries aboard aircraft and into sterile areas in
cargo. This section would be added to be consistent with the applicable
requirements in the ``Screening of persons and property and acceptance
of cargo'' section in proposed Sec. 108.201.
Proposed Sec. 108.201(m) would be added under ``Screening of
persons and property and acceptance of cargo'' to clarify that although
all screening-related requirements for screening in the United States
have been relocated to part 111, certain requirements still apply at
screening locations outside the United States at which air carriers
have operational control over screening. Specifically, proposed
Sec. 108.201(m) would state that air carriers that do have operational
control over screening outside the United States shall carry out and
comply with all relevant sections of part 111 of this chapter, except
for those requirements related to screening company certification, to
the extent allowable by local law. An air carrier would be permitted to
use screeners who do not meet the requirements of Sec. 111.205(a)(3)
provided that at least one representative of the air carrier who has
the ability to read and speak English functionally is present while the
air carrier's passengers are undergoing security screening. In the
event that an air carrier is unable to implement any of the
requirements for screening, the air carrier would be required to notify
the Administrator of those air carrier stations or screening locations
so affected. Most of proposed Sec. 108.201(m) consists of requirements
contained in Sec. 108.209(e) and (f) of proposed Notice No. 97-12.
Proposed Sec. 108.201(n) would be added to require that air carriers
notify the Administrator of any screening locations outside the United
States at which they do have operational control. To the FAA's
knowledge, there are currently no foreign locations where part 108 air
carriers have operational control over screening; however, this
proposal includes these requirements in the event of such a situation.
Proposed Sec. 108.203, ``Use of metal detection devices,'' would be
revised to state that no air carrier may use a metal detection device
contrary to its approved security program or its screening company
approved program(s). The section would also be revised to require that
metal detection devices meet the calibration standards established by
the Administrator in the screening company approved security
program(s).
Proposed Sec. 108.227(b) would be amended to also require that each
air carrier ensure that individuals performing security-related
functions on its behalf have knowledge of their screening company
approved security program(s) to the extent that such individuals need
to know in order to perform their duties.
Proposed Sec. 108.301(b)(1) would be amended to require that the
ground security coordinator (GSC) at each airport also conduct a review
of all security-related functions for effectiveness and compliance with
its screening company security program(s). Proposed Sec. 108.301(b)(2)
would be amended to require that the GSC at each airport also
immediately initiate corrective action with its applicable screening
company for each instance of noncompliance with the screening company's
security program.
Proposed Sec. 129.25(j) would revise current (j) to more clearly
break out and include the operations requirements consistent with
Sec. 108.201.
V. Proposed Revisions to Part 191
V.A. Protection of Sensitive Security Information (SSI)
The carriers' security programs are not available to the public
because the information that they contain would be helpful to
individuals who might intend to attack civil aviation. Part 191 of
Title 14, Code of Federal Regulations, contains rules to protect
security
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programs and other sensitive security information (SSI) from disclosure
to unauthorized persons. For example, under Sec. 191.5, a carrier and
each individual employed by, contracted to, or acting for that carrier
are required to restrict disclosure of and access to SSI to persons
with a need to know.
V.B. Sec. 191.1 Applicability and Definitions
Part 191.1(c) indicates that for matters involving the release or
withholding of information and records containing information described
in Sec. 191.7 (a) through (g) and related documents described in (l),
the authority of the Administrator may be further delegated. The FAA
proposes to add Sec. 191.7(m) to this list.
V.C. Sec. 191.5 Records and Information Protected by Others
Currently, screeners are required to protect SSI because they are
employed by, contracted to, or acting for carriers. This would remain
true under the screening company certification rules proposed in this
notice. However, to emphasize the need for screening companies and
their employees to protect SSI, the FAA proposes to add to Sec. 191.5
the requirement that screening companies also shall restrict access to
SSI.
As discussed previously, the FAA anticipates that in the course of
applying for and qualifying for a screening company certificate, an
applicant would receive the Screening Standard Security Program. To
ensure that applicants for certificates are under the same requirements
to protect SSI as are persons who hold certificates, the FAA proposes
to add Sec. 191.5(e). Proposed Sec. 191.5(e) provides that references
in part 191 to an air carrier, airport operator, indirect air carrier,
foreign air carrier, or certificated screening company include
applicants. Thus, an applicant for a screening company certificate
would be required to restrict disclosure of the security program
information that it receives. The same would be true of an applicant
for an air carrier certificate who also is seeking an approved security
program. The amount of SSI that carrier applicants now receive is very
limited, and there usually is very little time between when they might
receive standard security program information and when they might
become certificated. However, they should protect the security program
information from unauthorized disclosure.
In some parts of the industry, individuals may be placed in
training for positions, such as a screener position, before they are on
the companies' payrolls. The training may include SSI. If a person
completes training, he or she is hired. There has been some
misunderstanding as to whether such trainees are covered by part 191.
The FAA does consider them to be covered and proposes to add
Sec. 191.5(f) to make this clear. Such trainees meet one or more of the
criteria of employed by, contracted to, or acting for a carrier,
airport operator, or screening company.
V.D. Sec. 191.7 Description of SSI
Section 191.7 defines what information and records are SSI and
therefore are subject to the protections in Sec. 191.5. Under this
proposal, Sec. 191.7 would be amended to treat screening companies the
same as carriers and to emphasize the need for them to protect
sensitive security information. Section 191.7(a) describes various
security programs that are protected. It would be amended to include
screening company security programs.
Section 191.7(h) describes the information that the Administrator
has determined may reveal systemic vulnerabilities of the aviation
system or vulnerabilities of aviation facilities to attack. It would be
amended to include alleged violations and findings of violations of
part 111 and any information that could lead to the disclosure of
security information or data developed during FAA evaluations of
certificated screening companies. For events that occurred less than 12
months before the date of the release of the information, Sec. 191.7(h)
would be amended to allow the FAA to release summaries of certificated
screening companies' total security violations in specified time ranges
without identifying specific violations. For events that occurred 12
months or more before the date of the release of the information,
Sec. 191.7(h) would be amended to allow the FAA to release the names of
certificated screening companies cited in the alleged violations.
A new Sec. 191.7(m) would be added to cover the operations
specifications of screening companies. Specific portions of the
operations specifications would be considered SSI and would be
protected from disclosure to unauthorized persons. Some parts of the
operations specifications, however, would be considered not to be SSI
and would not be protected under part 191. These nonprotected items
include the name of the company, the locations at which the
Administrator has authorized the company to conduct business, the type
of screening that the Administrator has authorized the company to
perform, and the title and name of the person required by proposed
Sec. 111.209(b).
A new Sec. 191.7(n) would be added to cover the screener tests that
the FAA will develop and require under proposed Sec. 111.215. These
tests will contain information that is in the security programs and
must be protected in the same way.
VI. Paperwork Reduction Act
This proposal would create a new part 111 within Title 14, Code of
Federal Regulations, titled ``Certification of Screening Companies.''
It would also result in conforming amendments to 14 CFR parts 108, 109,
129, and 191. This proposal contains information collections that the
FAA has submitted to the Office of Management and Budget (OMB) as
required by the Paperwork Reduction Act of 1995 (44 U.S.C. section
3507(d)).
Title: Certification of Screening Companies.
The following proposed sections include new information collection
requirements: Sec. Sec. 108.103(b)(14) and (15), 108.201(j), and (k),
108.205, 108.207, 108.229, 109.103(b)(4) and (5), 109.105, 109.203(b)
and (c), 109.205, 109.207(e), (f), and (h), 111.105-111.109, 111.113-
111.119, 111.205, 111.209, 111.215, 111.219, 111.221, 129.25(c)(5) and
(6), (l), (m), and (o), 129.26(a)(4), and 129.28.
The FAA proposes to require that all companies that perform
aviation security screening be certificated by the FAA and meet
enhanced requirements. The FAA also proposes specific requirements that
are intended to improve the screening of passengers, accessible
property, checked baggage, and cargo and proposes to provide standards
for consistent high performance and increased accountability of
screening companies. The proposal is in response to a recommendation by
the White House Commission on Aviation Safety and Security and to a
Congressional mandate in Section 302 of the Federal Aviation
Reauthorization Act of 1996.
The FAA would collect several types of information from screening
companies. The FAA would collect and analyze information during the
application process before issuing certificates to screening companies.
This would be the most significant collection of information involved
but would ccur only initially for provisional screening company
certificates, after approximately 1 year for ``standard'' certificates,
and once every 5 years thereafter. In addition, the FAA would
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require that screening companies notify the FAA and provide information
as applicable when adopting their security programs and when proposing
to amend their security programs, operations specifications, or
screening company certificates. During periodic assessments of
screening company operations, the screening companies would be required
to provide any information requested to the FAA. The FAA would use this
information to ensure that the screening companies and carriers are
complying with screening requirements.
Next, the FAA would collect information from air carriers, foreign
air carriers, and indirect air carriers. These carriers would be
required to show evidence of compliance with specified regulations and
programs. This includes a proposed requirement that carriers maintain
copies of their screening companies' security programs at their
principal business offices and at their screening locations, and be
able to obtain copies of these programs to show the FAA upon request.
Carriers would be required to include in their security programs
descriptions of the systems that they would use to evaluate and test
the performance of all screening that they conduct. This requirement
would ensure that all carriers plan how they would remain actively
involved in evaluating and testing their screening operations and then
carry out those security program provisions. The FAA would review each
security program to ensure that the systems descriptions provide for
effective oversight and would evaluate the carriers periodically to
ensure that they are complying with their security programs. Each
carrier would also be required to collect threat image projection data
as specified in its carrier security program and in its responsible
screening company security programs and make the data available to the
FAA if requested.
In addition to the FAA collecting information, carriers would also
collect information from screening companies. First, when the FAA
issues an enforcement action to a screening company, that company would
be required to provide a copy of the enforcement action to the
carrier(s) for which it is providing screening. The carriers would use
the information that they collect regarding enforcement actions to
monitor the effectiveness of the screening operations being conducted
on their behalf. This would be a third party disclosure. Second,
carriers would also receive copies of their screening companies'
certificates, operations specifications, and security programs as well
as all of their screening companies' proposed changes to any of this
documentation. A screening company would be required to submit with its
amendment request a statement that all carriers for which it screens
have been advised of the proposed amendment and have no objection to
it. The Administrator would review this application and determine
whether or not to approve the proposed amendment. Third, upon
termination of screening services at a site, a screening company would
be required to surrender all its records of individual screeners to the
carrier(s) for which it conducts screening. The carrier(s) would use
this information from the screening company as needed for future
contracts.
Air carriers and foreign air carriers also would be required under
this proposal to notify the public by posting signs at screening
locations as specified in their security programs when they are
required by the FAA to implement additional security measures to
maintain system performance. This would be a third-party disclosure.
Indirect air carriers, in particular, would be required under this
proposal to post signs or provide written notifications to their
customers to caution them that certain X-ray systems being used may
damage specified types of film contained in their property. Indirect
air carriers also would be required under this proposal to maintain
copies of the results of their most recent radiation surveys conducted
at their principal business offices and the places where the X-ray
systems are in operation and would be required to make the surveys
available for FAA inspection upon request.
Screening companies would also be required to collect and retain
information under this proposed rule. Screening companies would be
required to collect copies of applicable regulations as specified in
the proposed rule and maintain records regarding the requirements in
the rule. Such records would include copies of their certificates,
operations specifications, security programs, and training records.
Screening companies would be required to ensure that the steps in
current Sec. 108.33(c)(1-4) have been completed before providing
sensitive security information to screener trainees. Screening
companies would be required to annotate screeners' training records
when screeners complete or terminate their training or transfer to
other companies. Screening companies would on occasion collect brief
permission statements from screeners that would require them to release
screener training and performance records to other screening companies
or to the screeners directly upon the screeners' request. These would
be third-party disclosures. Screening companies would also be required
under this proposal to issue letters of completion of training to all
screeners, screeners-in-charge, and checkpoint security supervisors
upon their successful completion of approved initial, recurrent, and
specialized courses of training.
It is estimated that this proposal would affect 640 screening
companies and carriers annually. This estimate consists of 66 screening
companies, 150 air carriers, 145 foreign air carriers, and 264 indirect
air carriers. This estimate also takes into account the FAA's
assumption that approximately 15 of the air carriers would apply for
and receive screening company certificates in order to screen cargo and
thus counts these 15 air carriers twice--once, which takes into account
the costs they would accrue as air carriers and once more, which takes
into account the costs they would accrue as screening companies. The
estimated annual reporting and recordkeeping burden hours are estimated
to be 173,577 hours.
Individuals and organizations may submit comments regarding the
information collection requirements. The comments must be received on
or before April 4, 2000 and must be submitted to the address for
comments listed in the ADDRESSES section of this document. These
comments should reflect whether the proposed collection is necessary;
whether the agency's estimate of the burden is accurate; how the
equality, utility, and clarity of the information to be collected can
be enhanced; and how the burden of the collection can be minimized.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. When OMB assigns a control number,
a notification of that number will be published in the Federal
Register.
VII. Compatibility With ICAO Standards
In keeping with U.S. obligations under the Convention on
International Civil Aviation, it is FAA policy to comply with
International Civil Aviation Organization (ICAO) Standards and
Recommended Practices to the maximum extent practicable. This proposal
is consistent with the ICAO security standards. The ICAO standards do
not differentiate security requirements by aircraft seating capacity,
and they require the screening of passengers for all international
flights. The FAA is not aware of any
[[Page 587]]
differences that this proposal would present if adopted. Any
differences that may be presented in comments to this proposal,
however, will be taken into consideration.
VIII. Regulatory Analyses
VIII.A. Regulatory Evaluation Summary
This proposed rule is considered significant under the regulatory
policies and procedures of the Department of Transportation (44 FR
11034; February 26, 1979) but does not reach the threshold for an
``economically significant'' action (i.e., annual costs greater than
$100 million).
Proposed and final rule changes to Federal regulations must undergo
several economic analyses. First, Executive Order 12866 directs that
each Federal agency 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, as amended March
1996, requires agencies to analyze the economic effects of regulatory
changes on small entities. Third, the Office of Management and Budget
directs agencies to assess the effects of regulatory changes on
international trade. In conducting these analyses, the FAA has
determined that the proposed rule would generate benefits that justify
its costs. Although the FAA was unable to determine if the proposed
rule would have a significant impact on a substantial number of small
entities and given the complexity of the issues, the FAA conducted a
regulatory flexibility analysis. The proposed rule would not constitute
a barrier to international trade and does not contain Federal
intergovernmental or private sector mandates. The full analyses
performed in response to the above requirements are contained in the
docket and are summarized below.
The FAA has analyzed the expected costs of this regulatory proposal
for a 10-year period, from 2000 through 2009. As required by the Office
of Management and Budget (OMB), the present value of this cost stream
was calculated using a discount factor of 7 percent. All costs in this
analysis are expressed in 1997 dollars.
Companies that have traditionally been providing passenger
screening for air carriers would be covered by these proposed
regulations. Some direct air carriers do their own passenger screening
and/or provide screening for other direct air carriers; in the context
of passenger screening, these carriers will be referred to as screening
companies. There currently are 66 screening companies performing
screening for part 108 and part 129 air carriers. The FAA estimates
that in 2000, there would be approximately 19,600 screeners and
screener supervisors, working for these screening companies who would
be affected by this proposed rule. The FAA estimates that there would
be an additional 3 screening companies that would be covered by these
regulations each year starting in 2001.
This proposed rule also would affect the 150 U.S. air carrier
operators certificated under part 108 providing scheduled and other
domestic and international passenger service in the United States as
well as the 2,634 U.S. indirect air carriers certificated under part
109 and 145 foreign air carriers certificated under part 129. The FAA
assumes that the number of direct, indirect, and foreign air carriers
would remain constant for each year of the analysis.
The FAA assumes that 10 percent of the direct and indirect air
carriers that currently transport cargo would elect to screen this
cargo. The FAA assumes that these carriers would choose to do their own
screening, with time being a very expensive commodity, for it would be
cost beneficial for them to do so rather than depend on other screening
companies to perform the services. Air carriers that screen cargo would
need to comply with the provisions that regulate screening companies;
this compliance would generate new costs.
Some of the sections of the proposed part 111 make references to
parts 108 and 109, and this analysis also examines potential changes to
parts 108 and 109. The numbering system for part 108 of this NPRM is
based on the numbering system of a recently published NPRM; on August
1, 1997, the FAA published Notice No. 97-12, which proposes to revise
14 CFR part 108 to update the overall regulatory structure for air
carrier security (62 FR 41730). This notice proposes to amend the
proposed rule language of part 108 in Notice No. 97-12 rather than the
current part 108. The numbering systems for revised part 109 (and
proposed part 111) also are closely aligned with the Notice No. 97-12
numbering system for clarity and consistency. If the text refers to a
proposed section in part 108 that is simply a renumbered section (based
on Notice No. 97-12), the current section number will be placed in
parentheses.
Many of the proposals for part 111 are either definitional or
discuss requirements in other sections. In addition, many of the
proposed changes to parts 108, 109, and 129 simply change definitions
or make minor word changes. These changes would not result in any
incremental costs and will not be covered in this summary. Twenty-one
proposed sections would result in costs and these are covered below.
Proposed Sec. 111.5 would require all companies performing
screening to allow FAA inspection to determine compliance with these
proposals. The screening company must also allow for FAA inspections
and tests of equipment as well as procedures at screening locations
that relate to the carrier's compliance with their regulations. The FAA
estimates that it would need 12 additional inspectors, 3 based at FAA
headquarters and 1 each stationed at the 9 FAA regions. The additional
personnel would process all the paperwork involved with issuing the
certificates, writing and approving the Standard Security Screening
Program (SSSP), and approving operations specifications as well as
processing any changes and amendments and analyzing performance data.
Ten-year costs sum to $10.10 million (net present value, $7.10
million).
Proposed Sec. 111.105 would provide specific requirements for each
screening company's SSSP. The FAA would write the basic SSSP document
and provide copies of the document to the screening companies. After
the SSSP is finalized, each screening company would be required to
maintain at least 1 complete copy of the SSSP at its principal business
office, at each airport that it serves, and each carrier that it
screens for. The 10-year costs for this proposed section sum to $65,600
(net present value, $50,400).
Proposed Sec. 111.107 describes the procedures for seeking SSSP
approvals and making future amendments. A screening company would
review the basic SSSP document obtained from the FAA, and then could
choose to adopt the SSSP as is or adopt the SSSP after making
amendments to it. Either the company providing screening services or
the FAA could initiate amendments to the SSSP after its initial makeup
has been agreed upon. The FAA assumes, for the purpose of this
analysis, that amendments to the SSSP would occur 3 times a year on
average. Each company would then need to brief its employees on these
changes. In addition, both screening companies and the FAA would be
required to make sure that all carriers using those screening companies
are aware of and concur with all SSSP changes. Total 10-year costs for
Sec. 111.107 sum to $48.13 million (net present value, $33.27 million).
Proposed Sec. 111.109 would require all screening companies to have
[[Page 588]]
certificates. All companies would apply initially for provisional
certificates that would be good for 1 year. Existing companies would be
permitted to continue their screening activities uninterrupted while
their applications are considered. Both existing and new screening
companies would then have to apply for standard certificates, which
would be effective for 5 years. The FAA would inspect screening
companies regularly and would monitor operations and tests continually
to determine that each screening company is in compliance with the
regulations. Once a certificate is obtained, a screening company would
need to apply to the FAA for an amendment to change any of the
information on the certificate; the FAA assumes that a certificate
would be amended once every other year on average. Total 10-year costs
sum to $133,000 (net present value, $96,400).
Proposed Sec. 111.113 would stipulate what each screening company
would need to have in its operations specifications (ops specs) in
order to get a screening certificate. Each screening company would
write its own ops specs; this document would emphasize the capabilities
and needs of the screening company, and it would need to be submitted
to the FAA for approval. Once the certificate is approved, the
screening company would be required to maintain a complete copy of its
ops specs at its principal business office and at each airport where it
conducts security screening as well as provide a current copy to each
carrier for which it screens. The FAA assumes that the ops specs would
be amended 4 times a year, twice by the screening company and twice by
the FAA. Total 10-year costs sum to $513,700 (net present value,
$447,400).
Proposed Sec. 111.115 describes the procedures for approving a
company's ops specs and future amendments to these ops specs. After a
company's ops specs are submitted, the FAA would review them to
consider whether changes are needed. Further FAA approval of the ops
specs would be necessary only if the screening company sought to amend
them. The screening company would need to brief its employees after
initial FAA acceptance of the ops specs and after each amendment. The
FAA assumes, for the purpose of this analysis, that changes to the ops
specs would occur twice a year on average. Total 10-year costs sum to
$5.29 million (net present value, $3.70 million).
Proposed Sec. 111.117 would require each screening company to allow
each carrier for which it performs screening to inspect the screening
company's personnel, facilities, equipment, and records to determine
compliance. Direct air carriers currently inspect the locations of the
screening companies that are screening for them; the FAA assumes that
the new requirements would result in additional inspections. Should an
audit result in an alleged violation, a screening company would provide
a copy of any proposed and final enforcement action to each carrier for
which it screens. This proposed requirement would assist the carriers
in evaluating the performance of their screening companies. Ten-year
costs sum to $10.36 million (net present value, $7.38 million).
Proposed Sec. 111.119 would require each certificated security
screening company to have a principal business office with mailing
address and to notify the FAA of any address changes. The FAA assumes
that virtually all businesses currently have a principal business
office, and expects that a screening company would change its mailing
address once every 3 years on average. Ten-year costs sum to $4,800
(net present value, $3,300).
Under proposed Sec. 111.201, screening companies would be required
to prevent the introduction of explosives, incendiaries, or deadly or
dangerous weapon into sterile areas. In addition, screening companies
would be required to staff their security screening checkpoints.
Companies that currently screen would not incur additional costs.
However, indirect air carriers that choose to screen would have new
responsibilities and costs; these costs would include those for
training new personnel and, in some cases, purchasing new equipment
(the costs of which are included in proposed Sec. 109.207). Total 10-
year costs for Sec. 111.201 sum to $1.01 million (net present value,
$711,300).
Proposed Sec. 111.205 would require initial and recurrent training
for persons who screen passengers, checked baggage, and carry-on items.
This training would include ensuring that screeners work in a courteous
and efficient manner and in compliance with the applicable civil rights
laws of the United States. This proposed section also would require
persons with supervisory screening duties to have initial and recurrent
training that includes leadership and management subjects. Ten-year
costs would be $8.29 million (net present value, $5.78 million).
Proposed Sec. 111.209 would require all companies providing
screening services to have qualified management and technical personnel
available at each major screening locations. Among these would be the
screening performance coordinator (SPC), CSS's and Screeners in charge
(SIC's). The SPC would be the focal point for FAA communication on
security-related issues and communication. All SPC's would be required
to take annual classes in leadership training, which would be a new
requirement. While each screening company would be required to fill
this position, the FAA does not assume that it would be a full time
position at every screening company. At smaller companies, the persons
who fill the SPC positions could perform SPC duties on a part time
basis while performing other duties at other times. The FAA calls for
comments from screening companies as to the number of companies that
already have personnel performing these SPC duties, and requests that
all comments be accompanied with clear documentation. Ten-year costs
for Sec. 111.209 would be $67.27 million (net present value, $47.06
million).
Proposed Sec. 111.213 would specify the requirements for screening
companies regarding training programs and knowledge of subject areas.
The FAA proposes to create performance-based training where screening
companies could use FAA-approved computer-based training (CBT)
programs. Screening companies would be responsible for ensuring that
their trainees are able to pass FAA knowledge-based and X-ray
interpretation tests at the end of their initial training and that
screening personnel meet performance standards thereafter. Ten-year
costs sum to $7.78 million (net present value, $5.41 million).
Proposed Sec. 111.215 would require that all screening personnel
pass computerized tests at the conclusion of their initial training and
every year thereafter and that the tests be administered by air carrier
personnel. Each screening company would be required to use an FAA-
designed computer-based test. The tests would be designed to help
ensure that screener trainees have achieved the knowledge and skills
that they need to perform their jobs effectively. In addition, the FAA
would require that all screening personnel pass additional 1 hour tests
after their on-the-job-training. These additional tests would be
designed to test proficiency and may require higher scores than those
the tests after initial training. These subsequent tests would not need
to be administered by air carrier personnel. Ten-year costs for this
proposed section sum to $3.44 million (net present value, $2.38
million).
To increase screener professionalism, proposed Sec. 111.219 would
require all
[[Page 589]]
screening companies to issue letters of completion of training to
screeners upon their successful completion of approved courses of
training. These letters of completion would provide personnel with
official records of their specific training accomplishments. The FAA
anticipates that screeners with evidence of training could move more
smoothly between employers and that they would be valued more highly
because they would not require as much training as new hires. Most
importantly, the FAA believes that requiring screening companies to
issue letters of completion to screeners for successful completion of
training would help enhance professionalism in this essential security
job. Ten years' costs sum to $1.38 million (net present value,
$963,600).
Under proposed Sec. 111.221, companies that provide screening
services would be required to forward screener training records to
other screening providers when requested by the screeners. This
requirement would help increase each screener's control over his or her
own mobility, and would resolve current problems relating to control of
screener documents. Ten-year costs above and beyond the SPC's time sum
to $151,300 (net present value, $105,500).
Under proposed Sec. 111.223, each screening company would be
required to use a threat image projection (TIP) system for each X-ray
and explosives detection system (EDS) that it uses to measure the
screening company's performance. (TIP is capable of introducing test
objects to screeners on the X-ray machines and EDS machines at any
rates set on the computers. The success rates can easily be recorded
and later analyzed by the FAA, the carriers, and the screening
companies to monitor continuously how well screening locations are
operating.) Proper operation of TIP systems and data collection would
be critical to measuring accurately screening company performances. The
FAA would ultimately establish a performance range that all screening
companies would be required to fall within to be considered effective
at detecting possible threats. The FAA would be responsible for
collecting TIP-related data; 10-year costs would sum to $20.46 million
(net present value, $14.37 million).
Proposed Secs. 108.103 (current Sec. 108.7), 109.103, and 129.25(c)
set forth changes to the direct, indirect, and foreign air carrier
security programs. New program sections would be required; these new
sections would reference each carrier's new responsibilities and
requirements vis-a-vis screening companies. Hence, new sections would
have to be written and submitted to the FAA for approval, and air
carriers would need to expend resources to maintain these new sections.
The proposed changes to Sec. 109.103 also would require indirect air
carriers to acknowledge in writing their receipt of approved security
programs or security program amendments from the FAA. Ten-year costs
for these sections total $15.29 million (net present value, $10.74
million).
The proposal would modify the current regulatory text of proposed
Sec. Sec. 109.105 (current Sec. 109.5) and 129.25(e) to clarify the
requirements and make them consistent with the organization of proposed
Sec. 108.105 (current Sec. 108.25). Under these proposals, the only
substantive change would affect indirect air carriers, as they would be
allowed to petition the FAA to reconsider FAA amendments if the
petitions are submitted no later than 15 days before the effective
dates of the FAA amendment. Ten-year costs total $14,800 (net present
value, $10,400).
Proposed Secs. 108.201(i) and (j); 109.203(b) and (c); and
129.25(l) and (m) (all new sections) would require each carrier to
ensure that each of its screening company's actions are consistent with
part 111, the screening company's SSSP, and the screening company's ops
specs. Each air carrier would need to expend resources to amend its
security programs to include these new oversight responsibilities. Air
carriers would also have to purchase and maintain computer equipment
required to test screeners. The amounts and types of equipment that air
carriers would need to provide to screening companies would vary
depending on the size of the airports where the screening is taking
place. The FAA currently is providing screening companies at certain
airports with computers for CBT but would not provide for the
computer's maintenance; all other equipment would have to be purchased
and maintained by the applicable air carriers. Ten-year costs for these
proposed sections sum to $21.07 million (net present value, $15.52
million).
Proposed Secs. 108.205 (current Sec. 108.17), 109.207, and 129.26
would be amended to require that carriers use X-ray systems in
accordance with their security program and applicable screening company
security programs. Each carrier would need to ensure that each X-ray
system that uses TIP meets the standards set forth in its security
program. As TIP is a new system, X-ray systems that have been used at
airports have not been designed to run it. Accordingly, many X-ray
machines at airports would need to be replaced with equipment that is
TIP compatible. The FAA is providing carriers at certain airports with
the equipment required but would not provide the maintenance of these
X-ray machines; all other equipment would have to be purchased and
maintained by the applicable carriers. The FAA proposes that the
deployment of these machines be phased in over a 5-year period based on
the size and complexity of the airport. In addition, foreign air
carriers would no longer have to ensure that their screening operators
be provided with individual personal dosimeters to measure exposure to
X-rays; removal of this requirement would result in cost savings. Ten-
year costs for this proposed section sum to $69.39 million (net present
value, $57.20 million).
Proposed new Secs. 108.229, 109.205, and 129.25(n) would require
that each carrier monitor each screener training test required under
proposed Sec. 111.215 for all screening companies screening on the
carrier's behalf. This proposed requirement is intended to increase air
carrier involvement with the training and testing processes and to help
deter cheating. Each test monitor would have to be a direct carrier
employee (not a contracted employee) who does not have part 111 or
other screening-related responsibilities. These proposed sections also
would require that screeners be evaluated by non-screening supervisors
once a year; direct and foreign air carriers already have supervisors
do this, so the only additional cost would be for indirect air
carriers. Ten-year costs for this proposed section sum to $9.04 million
(net present value, $6.32 million).
Total 10-year costs for these proposals would be $300.02 million
(present value, $219.22 million).
Benefits
The primary benefit of the proposed rule would be significantly
increased protection to U.S. citizens and other citizens traveling on
U.S. domestic and foreign air carrier flights from acts of terrorism as
well as increased protection for those operating aircraft.
Specifically, the proposed rule is aimed at deterring terrorism by
preventing explosives, incendiaries, and deadly or dangerous weapons
from being carried aboard commercial flights in checked baggage, carry-
on baggage, cargo, and on persons.
Terrorism can occur within the United States. Members of foreign
terrorist groups, representatives from state sponsors of terrorism, and
radical fundamentalist elements from many nations are present in the
United States. In addition, Americans are joining
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terrorist groups. The activities of some these individuals and groups
go beyond fund raising to recruiting other persons (both foreign and
U.S.) for activities that include training with weapons and making
bombs. These extremists operate in small groups and can act without
guidance or support from state sponsors. This makes it difficult to
identify them or to anticipate and counter their activities. The
following discussion outlines some of the concrete evidence of the
increasing terrorist threat within the United States and to domestic
aviation.
Investigation into the February 1993 attack on the World Trade
Center (WTC) uncovered a foreign terrorist threat in the United States
that is more serious than previously known. The WTC investigation
disclosed that Ramzi Yousef had arrived in the United States in
September 1992 and had presented himself to immigration officials as an
Iraqi dissident seeking asylum. Yousef and a group of Islamic radicals
in the United States then spent the next 5 months planning the bombing
of the WTC and other acts of terrorism in the United States. Yousef
returned to Pakistan on the evening of February 26, 1993, the same day
that the WTC bombing took place. Yousef traveled to the Philippines in
early 1994 and by August of the same year had conceived a plan to bomb
as many as 12 U.S. airliners flying between East Asian cities and the
United States.
Yousef and co-conspirators Abdul Murad and Wali Khan tested the
type of explosive devices to be used in the aircraft bombings and
demonstrated the group's ability to assemble such a device in a public
place, in the December 1994 bombing of a Manila theater. Later the same
month, the capability to get an explosive device past airport screening
procedures and detonate it aboard an aircraft also was successfully
tested when a bomb was placed by Yousef aboard the first leg of
Philippine Airlines Flight 424 from Manila to Tokyo. The device
detonated during the second leg of the flight, after Yousef had
deplaned at an intermediate stop in the Philippine city of Cebu.
Preparations for executing the plan were progressing rapidly.
However, the airliner bombing plot was discovered in January 1995 by
chance after a fire led Philippine police to the Manila apartment where
the explosive devices were being assembled. Homemade explosives,
batteries, timers, electronic components, and a notebook full of
instructions for building bombs were discovered. Subsequent
investigations of computer files taken from the apartment revealed the
plan, in which 5 terrorists were to have placed explosive devices
aboard United, Northwest, and Delta airline flights. In each case, a
similar technique was to be used. A terrorist would fly the first leg
of a flight out of a city in East Asia, planting the device aboard the
aircraft and then deplane at an intermediate stop. The explosive device
would then destroy the aircraft, continuing on a subsequent leg of the
flight to the United States. It is likely that thousands of passengers
would have been killed if the plot had been successfully carried out.
Yousef, Murad, and Khan were arrested and convicted in the bombing
of Philippine Airlines flight 424 and in the conspiracy to bomb U.S.
airliners. Yousef was sentenced to life imprisonment for his role in
the Manila plot, while the 2 other co-conspirators have been convicted.
Yousef also was convicted and sentenced to 240 years for the World
Trade Center bombing. However, there are continuing concerns about the
possibility that other conspirators remain at large. The airline
bombing plot, as described in the files of Yousef's laptop computer,
would have had 5 participants. This suggests that, while Yousef, Murad
and Khan are in custody, there may be others at large with the
knowledge and skills necessary to carry out similar plots against civil
aviation.
The fact that Ramzi Yousef was responsible for both the WTC bombing
and the plot to bomb as many as 12 United States air carrier aircraft
shows that: (1) Foreign terrorists are able to operate in the U.S. and
(2) Foreign terrorists are capable of building and artfully concealing
improvised explosive devices that pose a serious challenge to aviation
security. This, in turn, suggests that foreign terrorists conducting
future attacks in the U.S. may choose civil aviation as a target. Civil
aviation's prominence as a prospective target is clearly illustrated by
the circumstances of the 1995 Yousef conspiracy.
The bombing of a Federal office building in Oklahoma City, Oklahoma
shows the potential for terrorism from domestic groups. While the
specific motivation that led to the Oklahoma City bombing would not
translate into a threat to civil aviation, the fact that domestic
elements have shown a willingness to carry out attacks resulting in
indiscriminate destruction is worrisome. At a minimum, the possibility
that a future plot hatched by domestic elements could include civil
aircraft among possible targets must be taken into consideration. Thus,
an increasing threat to civil aviation from both foreign sources and
potential domestic ones exists and needs to be prevented and/or
countered.
That both the international and domestic threats have increased is
undeniable. While it is extremely difficult to quantify this increase
in threat, the overall threat can be roughly estimated by recognizing
the following:
U.S. aircraft and American passengers are representatives
of the United States, and therefore are targets;
Up to 12 airplanes could have been destroyed and thousands
of passengers killed in the actual plot described above;
These plots came close to being carried out; it was only
through a fortunate discovery and then extra tight security after the
discovery of the plot that these incidents were thwarted;
It is just as easy for international terrorists to operate
within the United States as domestic terrorists, as evidenced by the
World Trade Center bombing; therefore,
Based on these facts, the increased threat to domestic
aviation could be seen as equivalent to some portion of 12 Class I
Explosions on U.S. airplanes. (The FAA defines Class I Explosions as
incidents that involve the loss of an entire aircraft and incur a large
number of fatalities.)
In 1996, both Congress and the White House Commission on Aviation
Safety and Security (Commission) recommended further specific actions
to increase civil 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 civil 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 civil aviation
security personnel; and (2) Requiring the FAA to promulgate additional
security-related regulations, including this proposal.
In the absence of increased protection for the U.S. domestic
passenger air transportation system, it is conceivable that the system
would be targeted for future acts of terrorism. If even one such act
were successful, the traveling public would demand immediate increased
security. Providing immediate protection on an ad hoc emergency basis
would result in major inconveniences, costs, and delays to air
travelers that may substantially exceed those imposed
[[Page 591]]
by the planned and measured steps contained in this proposal.
Based on the above statement, and after evaluating feasible
alternative measures, the FAA concludes that this proposed rule sets
forth the best method to provide increased security at the present
time. Notwithstanding the above, it is helpful to consider, to the
limited extent possible, the benefits of this proposal in reducing the
costs associated with terrorist acts. The following analysis describes
alternative assumptions regarding the number of terrorist acts
prevented and potential market disruptions averted that result in the
proposed rule benefits at least equal to the proposed rule costs. This
is intended to allow the reader to judge the likelihood of benefits of
the proposed rule equaling or exceeding its cost.
The cost of a catastrophic terrorist act can be estimated in terms
of lives lost, property damage, decreased public utilization of air
transportation, etc. Terrorists acts can result in the complete
destruction of an aircraft with the loss of all on board. The FAA
considers a Boeing 737 as representative of a typical airplane flown
domestically. The fair market value of a Boeing 737 is $16.3 million,
and the typical 737 airplane has 113 seats. It flies with an average
load factor of 64.7%, which translates into 73 passengers per flight;
the airplane would also have two pilots and three flight attendants.
A terrorist catastrophic event could also result in fatalities on
the ground. However, looking at the number of accidents including
aircraft covered by this proposed rule and the number of fatalities on
the ground over the last ten years, the average fatality was less than
0.5 persons per accident. Therefore, the FAA will not assume any ground
fatalities in this analysis.
In order to provide a benchmark comparison of the expected safety
benefits of rulemaking actions with estimated costs in dollars, a
minimum of $2.7 million is used as the value of avoiding an aviation
fatality (based on the willingness to pay approach for avoiding a
fatality). In these computations, the present value of each incident
was calculated using the current discount rate of 7 percent. Applying
this value, the total fatality loss of a single Boeing 737 is
represented by a cost $210.6 million (78 x $2.7 million). The safety
related costs of a single domestic terrorist act on civil aviation sum
to $271.18 million (net present value, $190.46 million).
Certainly the primary concern of the FAA is preventing loss of
life, but there are other considerations as well. Another large
economic impact is related to decreased airline travel following a
terrorist event. A study performed for the FAA by Pailen-Johnson
Associates, Inc., An Econometric Model of the Impact of Terrorism on
U.S. Air Carrier North Atlantic Operations, indicated that it takes
about 9 to 10 months for passenger traffic to return to the pre-
incident level after a single event. Such a reduction occurred
immediately following the destruction of Pan Am Flight 103 over
Lockerbie, Scotland in December 1988. In general, 1988 enplanements
were above 1987's. There was a dramatic fall-off in enplanement in the
first 3 months of 1989 immediately following the Pan Am 103 tragedy,
and it took until November 1989 for enplanements to approximate their
1987 and 1988 levels.
Trans-Atlantic enplanements increased, from 1985 to 1988, at an
annual rate of 10.7 percent. Projecting this rate to 1989 would have
yielded 1989 enplanements of 8.1 million, or 1.6 million more than Pan
Am actually experienced. This represents almost a 20 percent reduction
in expected enplanements caused by the destruction of Pan Am 103 by
terrorists.
The estimated effect of a successful terrorist act on the domestic
market has not been studied. Although there are important differences
between international and domestic travel (such as the availability of
alternative destinations and means of travel), the FAA believes that
the traffic loss associated with international terrorist acts is
representative of the potential domestic disruption.
There is a social cost associated with travel disruptions and
cancellations caused by terrorist events. The cost is composed of
several elements. First is the loss associated with passengers opting
not to fly--the value of the flight to the passenger (consumer surplus)
in the absence of increased security risk and the profit that would be
earned by the airline (producer surplus). Even if a passenger opts to
travel by air, the additional risk may reduce the associated consumer
surplus. Second, passengers who cancel plane trips would not purchase
other goods and services normally associated with the trip, such as
meals, lodging, and car rental, which would also result in losses of
related consumer and producer surplus. Finally, although spending on
air travel would decrease, pleasure and business travelers may
substitute spending on other goods and services (which produces some
value) for the foregone air trips. Economic theory suggests that the
sum of the several societal value impacts associated with canceled
flights would be a net loss. As a corollary, prevention of market
disruption (preservation of consumer and producer welfare) through
increased security created by the proposed rule is a benefit.
The FAA is not able to estimate the actual net societal cost of
travel disruptions and the corollary benefit gained by preventing the
disruptions. However, there is a basis for judging the likelihood of
attaining benefits by averting market disruption sufficient, in
combination with safety benefits, to justify the proposed rule. The
discounted cost of this proposed rule is $219.22 million, while the
discounted benefits for each Class I Explosion averted comes to $190.46
million. Hence, if 1 Class I Explosion is averted, the present value of
losses due to market disruption must at least equal $28.77 million
($219.22 million less $190.46 million--one Class I Explosion).
The value of market loss averted is the product of the number of
foregone trips and the average market loss per trip (combination of all
impacts on consumer and producer surplus). If one uses an average
ticket price of $160 as a surrogate of the combined loss, preservation
of 179,800 lost trips would be suffered, in combination with the safety
benefits of 1 averted Class I Explosion, for the benefits of proposed
rule to equal costs. This represents less than 0.1 percent of annual
domestic trips (the traffic loss caused by Pan Am 103 on trans-Atlantic
routes was 20 percent). Calculations can be made on the minimum number
of averted lost trips needed if the net value loss was only 75 percent
of the ticket price or exceeded the ticket price by 25 percent. If
total market disruption cost was $130 or $200 per trip, a minimum
retention of 221,300 and 143,800 lost trips, respectively, would need
to occur for the proposed rule benefits to equal the proposed rule
costs, assuming 1 Class I Explosion would be prevented. The FAA
requests comments on the potential size of market loss per trip and
number of lost trips averted.
The FAA used the same set of benefits for another proposed rule,
``Security of Checked Baggage on Flights Within the United States;
Notice of Proposed Rulemaking'' (64 FR 19220, April 19, 1999) as both
rulemakings have the same goals--to increase significantly the
protection to U.S. citizens and other citizens traveling on U.S.
domestic air carrier flights from acts of terrorism and to increase
protection to those persons operating aircraft. Accordingly, the FAA
calculated the economic impact and the potential averted market
disruption sufficient, in combination with safety benefits, to justify
both proposed rules.
[[Page 592]]
These values can be seen in the full analysis contained in the docket.
The FAA stresses that the range of trips discussed in the above
paragraph should be looked upon as examples and does not represent an
explicit endorsement that these would be the exact number of trips that
would actually be lost. As noted above, it is important to compare, to
the limited extent possible, the cost of this proposal to some estimate
of the benefit of increased security it would provide as that level of
security relates to the threat level.
Based on the White House Commission recommendation, recent
Congressional mandates and the known reaction of U.S. citizens to any
air carrier disaster, the FAA determines that proactive regulation is
warranted to prevent terrorist acts (such as Class I Explosions) before
they occur.
VIII.B. Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities (small business and small not-
for-profit Government jurisdictions) are not unnecessarily and
disproportionately burdened by Federal regulations. The RFA, which was
amended in March 1996, requires regulatory agencies to review rules to
determine if they have ``a significant economic impact on a substantial
number of small entities.'' The Small Business Administration defines
small entities to be those with 1,500 or fewer employees for the air
transportation industry. For this proposed rule, the small entity
groups are considered to be both scheduled air carrier operators
(subject to FAR part 108) and screening companies having 1,500 or fewer
employees. The FAA has identified a total of 41 direct air carriers and
38 screening companies that meet this definition.
The FAA has estimated the annualized cost impact on each of the
small entities, but has not conclusively determined whether or not the
proposed rule would have a significant economic impact on a substantial
number of small air carrier and screening company entities.
Accordingly, the Agency prepared an initial regulatory flexibility
analysis and invites comments on the Agency's conclusion and on the
analysis. This decision is based on the following analyses:
One percent of the 1997 annual median revenue of the 41
small direct air carriers impacted by this proposed rule, which is
$809,610 in 1997 dollars, is considered economically significant. None
of these entities would incur a substantial economic impact in the form
of annualized costs in excess of $809,610 as the result of the proposed
rule. However, as will be discussed further below, several of the small
direct air carriers are having financial difficulties and may have
trouble meeting the requirements of this proposed rule. Furthermore,
the cost burden is not strictly proportionate to the size of the
airline as measured by the number of employees. In addition, as
discussed below, the FAA was unable to obtain complete financial data
on approximately one third the air carriers and believes it important
to show the potential impact on these entities for the sake of
completeness and in the hope of eliciting substantive comments.
One percent of the 1997 annual median revenue of the 38
small screening companies impacted by this proposed rule, which is
$296,830 in 1997 dollars, is considered economically significant. None
of these entities would incur a substantial economic impact in the form
of annualized costs in excess of $296,830 as the result of the proposed
rule. However, based on the data available, some of the screening
companies may have trouble meeting the requirements of the proposed
rule due to financial difficulties. In addition, as discussed below,
the FAA was unable to obtain any data on half of the screening
companies and complete data on most of the rest, and so believes it
important to show the potential impact on these entities for the sake
of completeness and in the hope of eliciting substantive comments.
The FAA has not performed this type of analysis for the indirect
carriers that would choose to screen cargo. Each of these carriers
would have chosen to be certificated under part 111 and thus would be
voluntarily subjected to these proposals. Since the carriers would have
chosen to incur the costs, the FAA believes that none of these carriers
would have done so if it were not in their financial interests. The FAA
does not know which carriers would be certificated under proposed part
111 and so does not know how many of these carriers would be small
entities. The FAA seeks comments concerning whether any small indirect
carriers would screen cargo and requests that all comments be
accompanied with clear documentation.
Initial Regulatory Flexibility Analysis
Under section 603(b) of the RFA (as amended), each initial
regulatory flexibility analysis is required to address the following
points: (1) Reasons why the FAA is considering the proposed rule, (2)
The objectives and legal basis for the proposed rule, (3) The kind and
number of small entities to which the proposed rule would apply, (4)
The projected reporting, recordkeeping, and other compliance
requirements of the proposed rule, and (5) All Federal rules that may
duplicate, overlap, or conflict with the proposed rule. The FAA will
perform this analysis for small direct air carrier and small screening
companies separately.
1. Air Carriers
Reasons why the FAA is considering the proposed rule.--Over the
past several years, both Congress and the FAA have recognized that the
threat against civil aviation is changing and growing (see the
background section of the preamble for a more detailed discussion of
this threat). Terrorist and criminal activities within the United
States have forced the Congress, the FAA and other Federal agencies to
reevaluate the domestic threat against civil aviation. The proposed
rule is intended to counter this increased threat to U.S. civil
aviation security.
The objectives and legal basis for the proposed rule.--The
objective of the proposed rule is to increase protection to Americans
and others traveling on U.S. domestic air carrier flights from
terrorist acts. Specifically, the proposed rule is aimed at preventing
explosives from being on board commercial flights either in carry-on
baggage or checked cargo.
The legal basis for the proposed rule is found in 49 U.S.C. 44901
et seq. Among other matters the FAA must consider as a matter of policy
are maintaining and enhancing safety and security in air commerce as
its highest priorities (49 U.S.C. 40101(d)).
The kind and number of small entities to which the proposed rule
would apply.--The proposed rule applies to 150 scheduled airlines
subject to FAR part 108, of which 41 are small scheduled operators
(with 1,500 or fewer employees).
The projected reporting, recordkeeping, and other compliance
requirements of the proposed rule.--As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted a copy
of these proposed sections to the Office of Management and Budget (OMB)
for its review. Four proposed sections would impose paperwork costs on
small direct air carriers; these are described in detail in the full
analysis contained in the docket. The average amount of paperwork time
and costs for each small direct air carrier sums to 270.9 hours,
costing $6,395 per year. Over 10 years,
[[Page 593]]
total time and costs for all small direct air carriers sum to 111,048.5
hours costing $2,621,950.
All federal rules that may duplicate, overlap, or conflict with the
proposed rule.--The FAA is unaware of any Federal rules that either
duplicate, overlap, or conflict with the proposed rule.
Other Considerations:
Affordability Analysis
For the purpose of this analysis, the degree to which small
entities can ``afford'' the cost of compliance is predicated on the
availability of financial resources. Initial implementation costs can
be paid from existing company assets such as cash, by borrowing, or
through the provision of additional equity capital. Continuing annual
costs of compliance may be accommodated either by accepting reduced
profits, by raising ticket prices, or by finding other ways of
offsetting costs.
In this analysis, one means of assessing the affordability is the
ability of each of the small entities to meet its short-term
obligations. According to financial literature, a company's short-run
financial strength is substantially influenced by its working capital
position and its ability to pay short-term liabilities, among other
things.
Net working capital is the excess of current assets over current
liabilities. It represents the margin of short-term debt-paying ability
over existing short-term debt. In addition to the amount of net working
capital, two analytical indexes of current position are often computed:
(1) Current ratio; and (2) Quick ratio. The current ratio (i.e.,
current assets divided by current liabilities) helps put the amount of
net working capital into perspective by showing the relationship
between current assets and short-run debt. And the quick ratio
(sometimes called the acid test ratio) focuses on immediate liquidity
(e.g., cash, marketable securities, accounts receivable, divided by
current liabilities). A decline in net working capital, the current
ratio, and the quick ratio over a period of time (say, 3 years, 4
years, etc.) may indicate that a company is losing financial solvency.
Negative net working capital is an indication of financial difficulty.
If a company is experiencing financial difficulty, it is less likely to
be able to afford additional costs.
There is an alternative perspective to the assessment of
affordability based on working capital of this proposed rule. The
alternative perspective pertains to the size of the annualized costs of
the proposed rule relative to annual revenues. The lower the relative
importance of the costs, the greater the likelihood that implementing
offsetting cost-saving efficiencies or raising fares to cover increased
costs will not substantially decrease the number of passengers.
The FAA collected financial information on small air carriers for
1994 to 1997. Unfortunately, some of the needed information was not
available; in those cases, the FAA estimated revenue, assets, and
liabilities based on taking averages of similar sized companies. For
example, many of the financial statistics for 13 of the small regional
operators were not available. Hence, because of the paucity of data for
small regionals, many of the conclusions for many of the small regional
carriers may be questionable.
The financial information suggests the following:
Liquidity Analysis/Profitability Analysis--Small Air Carriers
Six of these entities have experienced increases in their
net working capital as well as their current and quick ratios over the
past 3 or 4 years. They also are generally profitable and, therefore,
probably would have financial resources available to meet the
requirements of this proposed rule.
One small entity was unprofitable in 1997; however, it was
profitable in the 3 previous years. In addition, it has positive net
working capital, and its current and quick ratios have been strong. It
is likely that this carrier would not have trouble meeting the costs of
this proposed rule.
For 10 currently profitable small entities, their ability
to afford the cost of compliance is less certain. This uncertainty
stems from the fact that the financial performances of these entities
have been inconsistent over the past 4 years.
The current liquidity and profitability of 11 small
entities would require action to finance the expected cost of
compliance imposed by this NPRM. Over the past 2 or 3 years, each of
these small entities has had negative net working capital. In addition,
their respective current and quick ratios have generally been on a
decline. They have frequently experienced financial losses.
For the 13 air carriers classified as small regionals for
which the FAA does not have complete data, it appears likely that 7 of
these air carriers would probably be able to afford the cost of
compliance associated with this proposed rule, but the other 6 may have
problems. This conclusion is based on their projected 1997
profitability.
Relative Cost Impact
The other alternative of assessing affordability,
annualized cost of compliance relative to the total operating revenues,
shows that for each of the 41 small air carriers impacted by this NPRM,
there would be relatively small impacts for most of the small entities.
The annualized cost of compliance relative to total operating revenues
would be less than or equal to 0.61 percent in all cases.
Hence, for all of the air carriers, the ratio of
annualized proposed rule costs to revenues would be less than 1.0
percent for each of the 3 years from 1995 through 1997. For all air
carriers that have liquidity and/or profitability problems, there
appears to be the prospect of absorbing the cost of the proposed rule
through some combination of fare increases and cost efficiencies.
No clear conclusion can be drawn with regard to the abilities of
some small entities to afford the cost of compliance that would be
imposed by this NPRM. On one hand, the Liquidity Analysis/Profitability
Analysis does not paint a positive picture of the ability of some of
the small entities impacted by this NPRM to pay near-term expenses
imposed by this rule, whereas the Relative Cost Impact Analysis
indicates that most of those same small entities may be able, over
time, to find ways to offset the increased cost of compliance. As the
result of information ascertained from both of these analyses, there is
uncertainty as to whether all of the small entities would be able to
afford the additional cost of doing business due to compliance with
this NPRM. Because of this uncertainty, the FAA solicits comments from
the aviation community (especially from small air carriers with less
than 1,500 employees) as to what extent small operators subject to this
NPRM would be able to afford the cost of compliance. The FAA requests
that all comments be accompanied with clear supporting data.
Disproportionality Analysis
On average, the 41 small entities would be disadvantaged relative
to large air carriers due to disproportionate cost impacts. This would
occur due to several reasons:
Individual large air carrier's total operational revenues
and current assets are, on average, well over 100 times larger than the
revenues and assets for small air carriers. However, the large air
carriers don't deal with 100 times as many checkpoints, X-ray systems,
or screening companies. So, these air
[[Page 594]]
carriers enjoy economies of scale in terms of the costs of complying
with this proposed rule;
All of the X-ray systems that the FAA anticipates
purchasing would be purchased at the higher volume airports, so that
almost all of them would be purchased for large air carriers; indeed,
only 1 of these systems would be purchased for a small air carrier.
This would save large air carriers almost $22 million; and
All air carriers, whether large or small, would have some
of the same fixed administrative costs, such as writing up and
maintaining new sections to their security programs. Having such costs
the same would give an advantage to large air carriers when looking at
the proportionate effect of this proposed rule.
Competitiveness Analysis
This proposed rule would not impose significant costs on any small
carriers. However, due to the financial problems that certain air
carriers are having, there may be some impacts on the relative
competitive positions of these carriers in markets served by them. A
more detailed evaluation is described in the full analysis contained in
the docket.
The FAA solicits comments on this issue from the U.S. airline
industry and small airlines in particular. Specifically, commenters are
asked to provide information on the impact that this proposed rule
would have on the continued ability of small airlines to compete in
their current markets. Comments are especially sought from operators
with 1,500 or fewer employees who would be impacted by this proposed
rule. The FAA requests that supporting data on markets and cost be
provided with the comments.
Business Closure Analysis
The FAA is unable to determine with certainty the extent to which
those small entities that would be significantly impacted by this
proposed rule would have to close their operations. However, the
profitability information and the affordability analysis can be
indicators in business closures.
In determining whether or not any of the 41 small entities would
close as the result of compliance with this proposed rule, one question
must be answered: ``Would the cost of compliance be so great as to
impair an entity's ability to remain in business?'' A number of these
small entities are already in serious financial difficulty. To what
extent the proposed rule makes the difference in whether these entities
remain in business is difficult to answer. The FAA believes that the
likelihood of business closure for any of these small air carriers as a
result of this proposed rule is low to moderate. However, since there
is uncertainty associated with whether some of the small entities would
go out of business as the result of the compliance cost of this
proposed rule, the FAA solicits comments from the aviation community as
to the likelihood of this occurrence. As noted above, the FAA requests
that all comments be accompanied with clear supporting data.
Alternatives
The FAA considered alternatives to the proposed rule for small
direct air carriers. These alternatives have compliance costs that
range from $13.30 million to $19.95 million.
Alternative 1--Status Quo. Under this alternative, the FAA would
exempt small direct air carriers from all requirements of this proposed
rule. Continuing with this policy would be the least costly course of
action but also would be less safe than the proposed rule; direct air
carriers are ultimately responsible for proper screening, as they must
be able to ensure that the screening companies are in compliance and
that screening personnel are performing adequately. The FAA believes
that the threat to civil aviation within the United States has
increased and that further rulemaking is necessary. Thus, this
alternative is not considered to be acceptable because it permits
continuation of an unacceptable level of risk to U.S. airline
passengers. In addition, the FAA would not meet the Congressional
mandate.
Alternative 2.--The FAA considered doing away with the test
monitoring requirements of screening companies by small direct air
carriers.
The proposal would require that each carrier monitor each screener
training test for all screening companies that conduct screening on the
air carrier's behalf. Each test monitor would have to be a direct air
carrier employee. This alternative would result in cost savings to each
small direct air carrier. Small carriers would no longer have to
process request letters from the screening companies or have employees
monitor the tests. Over 10 years, this alternative would save all small
direct air carriers $2.68 million (net present value, $1.73 million),
resulting in total compliance costs of $17.27 million (net present
value, $12.54 million).
The FAA believes that this alternative would not enhance security.
Because air carriers are ultimately responsible for ensuring the safe
and proper screening of persons and property, the FAA believes that it
is important to ensure air carrier involvement with critical aspects of
this rulemaking. Monitoring testing is a critical aspect of this
rulemaking, for it helps to prevent potential screeners from passing
the tests by cheating and other unauthorized conduct. Removing the
monitoring requirement would diminish the emphasis and importance that
this proposed rule places on air carrier oversight. In addition,
retaining the monitoring requirement helps to support the concept of a
balance of responsibilities between screening companies and the air
carriers for which they screen. Under this alternative, there would be
less coordination between small air carriers and screening companies.
The FAA believes that potential cost savings would be outweighed by a
reduction in security.
Alternative 3.--The FAA considered not requiring that smaller
screening companies obtain approval from their carriers before
submitting their security program amendments to the FAA.
The proposal would require screening companies to include in any
proposed amendment packages that they send to the FAA statements that
all carriers for which they screen have been advised of the proposed
amendments and approve of them. Hence, each air carrier would have to
process and respond to any proposed amendment by the screening
companies that conduct screening on its behalf. This alternative would
result in cost savings to each small direct air carrier. These carriers
would not need to spend time evaluating the proposed amendments for the
screening companies. Hence, the direct air carriers would no longer
have to expend resources evaluating the proposed amendments by the
screening companies. Over 10 years, this alternative would save all
small direct air carriers $6.65 million (net present value, $4.67
million), resulting in total compliance costs of $13.30 million (net
present value, $9.60 million).
The FAA believes that this alternative would harm security. Air
carriers are responsible, by statute, for screening and would be held
responsible along with the screening companies for complying with part
111 and the SSSP. The carriers would therefore need to be kept informed
about any changes to screening-related regulations and should have the
opportunity to comment on and approve of them before the FAA approves
the changes. The FAA would have a difficult time holding carriers
accountable for changes of which they were not made aware; this
alternative would ensure that some air carriers were not made aware of
all changes. Hence, under this alternative,
[[Page 595]]
all carriers would not be informed of all screening-related changes to
the applicable SSSP. The FAA believes that potential cost savings would
be outweighed by a reduction in security.
Alternative 4--The FAA considered not requiring that small air
carriers install and operate TIP on their X-ray systems.
Under the proposal, each air carrier would need to ensure that each
X-ray system that it uses has a TIP system that meets the standards set
forth in its security program. As TIP is a new system, some older X-ray
systems have not been designed to run TIP. Accordingly, many X-ray
systems at airports would need to be replaced with newer systems that
are TIP compatible. This alternative would result in cost savings to
all small air carriers. These carriers would not have to purchase these
new X-ray systems or maintain the TIP portions of the systems annually.
Over 10 years, this alternative would save all small air carriers $6.09
million (net present value, $4.58 million), resulting in total
compliance costs of $13.30 million (net present value, $9.60 million).
The FAA believes that this alternative would harm security.
Promoting this alternative would result in inconsistent measurements of
performance at different airports and even at different screening
locations within airports; the FAA believes that it is important to
have consistent measurements of performance at all screening locations.
In addition, the FAA needs to ensure the same level of safety and
continuity at all of the Nations airports and screening locations. Not
having TIP would result in a reduction in security for those small air
carriers covered under this alternative in particular and for the
entire aviation system in general. Hence, under this alternative, there
would be a decrease in screener effectiveness and a reduction in the
number of ways to measure this decrease. The FAA believes that
potential cost savings would be outweighed by a reduction in security.
Alternative 5.--Proposed Rule. This alternative represents the
proposed rule for direct air carriers. Under this alternative, small
direct air carriers would be subject to all aspects of this proposed
rulemaking. The cost of compliance expected to be incurred by the 41
small entities subject to the requirements of the proposed rule is
estimated to be $19.95 million ($14.27 million, discounted) over the
next 10 years. This alternative is preferred because the FAA believes
that it has the best balance between costs and benefits for all
screening companies while enhancing aviation safety and security (in
the form of risk reduction) for the traveling public.
2. Screening Companies
Reasons why the FAA is considering the proposed rule.--The reasons
are the same as those discussed above for the small air carriers.
The objectives and legal basis for the proposed rule.--The
objectives and legal basis are the same as those discussed previously
for the small air carriers.
The kind and number of small entities to which the proposed rule
would apply.--The proposed rule applies to 66 screening companies that
screen for direct air carriers subject to FAR parts 108 and 129, of
which 38 are small entities (with 1,500 or fewer employees).
The projected reporting, recordkeeping, and other compliance
requirements of the proposed rule.--As required by the Paperwork
Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted a
copies of these proposed sections to the Office of Management and
Budget (OMB) for its review. Twelve proposed sections would impose
paperwork costs on small screening companies; these are described in
detail in the full analysis contained in the docket. The average amount
of paperwork for each small screening company totals 1,861.0 hours
costing $78,259 over 10 years. Over 10 years, total time and costs for
all small screening companies sum to 70,718 hours costing $2,973,836.
All Federal rules that may duplicate, overlap, or conflict with the
proposed rule.--The FAA is unaware of any Federal rules that either
duplicate, overlap, or conflict with the proposed rule.
Other Considerations
Affordability Analysis
The previous discussion under ``Affordability Analysis'' for small
air carriers is applicable to small screening companies.
The FAA attempted to collect financial information on small
screening companies. In many cases, the data were not available; data
were available for only 19 companies for 1994 to 1997. Of the 38 small
screening companies, 8 were small air carriers that screen for
themselves and other air carriers; the financial information available
is the same as was used in the previous small air carrier analysis.
Unfortunately, though, there is no requirement for screening companies
to report their financial data as there is for air carriers, so there
is no readily available source for financial information. In addition,
many of these companies are privately held companies that do not have
to report their assets, liabilities, profits, and revenues. The FAA was
able to find some information for 11 screening companies, but the scope
of the data varied extensively; some of these companies have not
updated their publicly disclosed financial data in several years. For 2
of the companies, the most recent data publicly available were from
1993, another had current assets and liabilities available only for
1994, while a fourth had net profits, current assets, and current
liabilities available for only 1994 and 1995. In many cases, total
operating revenue and quick assets were available, at most, for 1 year.
Another problem facing this type of financial analysis for a
company that provides many services to include screening is that no
matter how small a percentage of its business comes from screening, the
company is being considered under this Initial Regulatory Flexibility
Analysis if it has less than 1,500 employees. Neither finding data for
such companies nor applying this data to other screening companies is
straightforward. In addition, of the 18 screening companies for which
the FAA had (or estimated) 1997 financial data, 8 of the 9 largest
companies were small air carriers (and some of the data for these were
based on estimates). Hence, it is difficult to extrapolate their
financial information to makes estimations for other small screening
companies.
The FAA attempted to make estimates based on the available data.
The FAA requests financial data for all screening companies,
particularly those where no information was publicly available; in all
cases, the FAA requests that all data be accompanied by clear
documentation.
The financial information suggests the following:
Liquidity Analysis/Profitability Analysis
Of the 6 screening companies that are also air carriers
for which the FAA has complete data on, 2 would probably have no
problem meeting the proposed rule's requirements; two might have
trouble meeting the proposed rule's requirements due to their
inconsistent financial performance in previous years; and two probably
would have trouble meeting the proposed rule's requirements due to poor
financial performance.
The other 2 screening companies that also are air carriers
are small regional air carriers for which, as noted
[[Page 596]]
previously, the FAA did not have complete data; it appears that both
would probably be able to afford the cost of compliance associated with
this proposed rule. This conclusion is based on their projected 1997
profitability.
As discussed above, the FAA has incomplete data on the remaining 11
screening companies and had to estimate portions of their financial
data. Accordingly, these conclusions are less certain:
Five of these entities have experienced increases in their
net working capital as well as their current and quick ratios over the
past 3 or 4 years. They also are generally profitable and therefore
probably would have financial resources available to meet the
requirements of this proposed rule.
One small entity was unprofitable in 1994 but has been
profitable in the last 3 years. Another small entity has been
profitable in the past 2 years. Both now have positive net working
capital, and their current and quick ratios have been strong. It is
likely that these companies would not have trouble meeting the costs of
this proposed rule.
For two small entities, their ability to afford the cost
of compliance is less certain. For one of these, while it was
profitable for all 4 years, its net working capital as well as its
current and quick ratios have been declining; in addition, it had
negative net working capital in 1996 and 1997. For the other, while it
has had positive net working capital for the last 3 years, it has not
been profitable in 2 of these 3 years.
The current liquidity and profitability of 2 small
entities would require action to finance the expected cost of
compliance imposed by this NPRM. Over the past 2 or 3 years, each of
these small entities has had negative net working capital. In addition,
their respective current and quick ratios have generally been on a
decline. They have frequently experienced financial losses.
Relative Cost Impact
In looking at the annualized cost of compliance relative
to the total operating revenues for each of the 8 small air carriers
that also provide screening services, the FAA notes that the costs show
relatively small impacts for these small entities. The annualized cost
of compliance relative to total operating revenues would be less than
or equal to 0.12 percent.
In looking at the annualized cost of compliance relative
to the total operating revenues for the other 11 small entities, these
ratios are not as benign. The annualized cost of compliance relative to
total operating revenues would be less than or equal to 3.19 percent.
For two companies, this ratio exceeds 1.0 percent for all three years
examined; each of these 3 companies was profitable for the years
examined. It is important to emphasize, once again, that many of these
ratios are based on estimated total operating revenues.
Hence, for each of the small screening companies, the
ratio of annualized proposed rule costs to revenues would be no more
than 3.19 percent for each of the 3 years from 1995 through 1997. For
the 4 screening companies that had liquidity and/or profitability
problems in 1997, this ratio has been no greater than 0.38 percent over
this 3-year period, so there appears to be the prospect of absorbing
the cost of the proposed rule through price and production
efficiencies.
No clear conclusion can be drawn with regard to the abilities of
some small entities to afford the costs of compliance that would be
imposed by this NPRM. On one hand, the Liquidity Analysis/Profitability
Analysis does not portray a positive picture of the ability of some of
the small entities impacted by this NPRM to pay near-term expenses
imposed by this rule, whereas the Relative Cost Impact Analysis
indicates that most of those same small entities may be able, over
time, to find ways to offset the incremental costs of compliance. As
the result of information ascertained from both of these analyses,
there is uncertainty as to whether all of the small entities would be
able to afford the additional costs of doing business due to compliance
with this NPRM. Because of this uncertainty, the FAA solicits comments
from screening companies (especially from small companies with less
than 1,500 employees) as to what extent small companies subject to this
NPRM would be able to afford the costs of compliance. The FAA requests
that all comments be accompanied with clear supporting data.
Disproportionality Analysis
Due in large part to the paucity of data from which to work, the
FAA can not draw any firm conclusions concerning any of the 38 small
entities would be disadvantaged relative to large screening companies
due solely to disproportionate cost impacts. The FAA compared the
annualized costs of the 5 largest screening companies to an average of
annualized costs of the small entities, and found them to be, on
average, 12 times as large. This comparison was basically in line with
the comparison of the total operating revenues of the largest screening
companies to the average of the small entities; these average, 11 times
as large for both 1996 and 1997. However, this comparison was double
the comparison of current assets of the largest screening companies to
the average of the small entities for these same 2 years; the FAA found
them to be, on average, 6 times as large. This analysis suggests that
large entities may be disadvantaged relative to small screening
companies due to disproportionate cost impact. The FAA requests that
both large and small screening companies provide additional financial
data to assist the FAA in determining any financial disproportionality.
As always, the FAA requests that all submitted data be accompanied with
clear documentation.
Competitiveness Analysis
This proposed rule would not impose significant costs on any small
screening companies. However, due to the financial problems that
certain air carriers are having, there may be some impact on the
relative competitive positions of these carriers in markets served by
them. The FAA solicits comments on this issue from all screening
companies and small screening companies in particular. The FAA requests
that supporting data on markets and cost be provided with the comments.
Business Closure Analysis
The FAA is unable to determine with certainty the extent to which
those small entities that would be significantly impacted by this
proposed rule would have to close their operations. However, the
profitability information and the affordability analysis can be
indicators in business closures.
In determining whether any of the 38 small entities would close
business as the result of compliance with this proposed rule, one
question must be answered: ``Would the cost of compliance be so great
as to impair an entity's ability to remain in business?'' Of the
information that the FAA has on 19 of these entities, 4 already are in
serious financial difficulty. To what extent the proposed rule makes
the difference in whether these entities remain in business is
difficult to answer. The FAA believes that the likelihood of business
closure for any of these small screening companies, as a result of this
proposed rule, is low to moderate. However, since there is uncertainty
associated with whether some of the small entities would go out of
business as the result of the compliance costs of this proposed rule,
the FAA solicits comments from the aviation community as to the
likelihood
[[Page 597]]
of this occurrence. As always, the FAA requests that all comments be
accompanied with clear supporting data.
Alternatives
The FAA considered alternatives to the proposed rule for small
screening companies. These alternatives have compliance costs that
range from $12.73 million to $13.10 million.
Alternative 1.--Status Quo. Under this alternative, the FAA would
exempt small screening companies from all requirements of this proposed
rule. Currently, the FAA does not regulate screening companies
directly. Continuing with this policy would be the least costly course
of action but also would be less safe than the proposed rule and would
not fulfill the Congressional mandate. The FAA believes that the threat
to civil aviation within the United States has increased and that
further rulemaking is necessary. Thus, this alternative is not
considered to be acceptable because it permits continuation of an
unacceptable level of risk to U.S. airline passengers.
Alternative 2.--The FAA considered doing away with direct air
carrier test monitoring requirements for smaller screening companies.
The proposal would require each screening company to ensure that
each test is monitored by an employee of the carrier for which it
screens. The screening company would be responsible for informing the
applicable carrier(s) that it plans to administer a test to screener
trainees, and the applicable carrier(s) would be responsible for
providing test monitors upon request. Under this alternative, small
screening companies would not have to request a testing monitor. This
alternative would result in cost savings to all small screening
companies. These companies would no longer need to write letters to the
applicable direct air carrier requesting the employees to monitor the
tests. Over 10 years, this alternative would save all small screening
companies $357,800 (net present value, $251,300), resulting in total
compliance costs of $12.74 million (net present value, $8.85 million).
The FAA believes that this alternative would not enhance security.
Because air carriers are ultimately responsible for ensuring the safe
and proper screening of persons and property, the FAA believes that it
is important to ensure air carrier involvement with critical aspects of
this rulemaking. Removing this monitoring requirement would strongly
diminish the emphasis and importance that this proposed rule places on
air carrier oversight. In addition, retaining the monitoring
requirement helps to support the concept of a balance of
responsibilities between screening companies and the air carriers for
which they screen. The FAA believes that potential cost savings would
be outweighed by a reduction in security.
Alternative 3.--The FAA considered not requiring that CSS's and
shift supervisors of smaller screening companies complete leadership
training.
The proposal would require persons with supervisory screening
duties to have initial and recurrent training that includes leadership
and management subjects. All CSS's and shift supervisors would be
required to take annual classes in leadership training, which would be
a new requirement. Under this alternative, small screening companies
would not be required to have their CSS's and shift supervisors take
this training. This alternative would result in cost savings to all
small screening companies. These companies would no longer need to pay
to have their personnel take these classes or pay for leadership
training instructors. Over 10 years, this alternative would save all
small screening companies $292,900 (net present value, $205,000),
resulting in total compliance costs of $12.80 million (net present
value, $8.89 million).
The FAA believes that this alternative would harm security.
Security is best served when competent, qualified leadership exists at
all locations, whether large or small, busy or not busy. There are
certain core skills that CSS's and shift supervisors need in order to
perform their responsibilities effectively. Hence, under this
alternative, there would not be consistency of leadership at the
different screening checkpoints. The FAA believes that potential cost
savings would be outweighed by a reduction in security.
Alternative 4.--The FAA considered not requiring that smaller
screening companies obtain air carrier approval before submitting their
security program amendments to the FAA.
The proposal would require screening companies to include in any
proposed amendment packages that they send to the FAA a statements that
all carriers for which they screen have been advised of the proposed
amendments and agree to them. Hence, each screening company would have
to send its proposed amendment to every carrier for which it screens
and respond to any changes that that carrier proposes. This alternative
would result in cost savings to all small screening companies. These
screening companies would no longer have to send copies of their
proposed amendments to their carriers or respond to their carrier's
modifications. Over 10 years, this alternative would save all small
screening companies $367,200 (net present value, $258,400), resulting
in total compliance costs of $12.73 million (net present value, $8.84
million).
The FAA believes that this alternative would harm security. Air
carriers are responsible by statute for screening and would be held
responsible along with the screening companies for complying with part
111 and the SSSP. Under this alternative, all carriers would not be
informed of all screening-related changes to the applicable SSSP's. The
FAA would have a difficult time holding carriers accountable for
changes of which they were not made aware; this alternative would
ensure that some air carriers are not made aware of all changes. The
FAA believes that potential cost savings would be outweighed by a
reduction in security.
Alternative 5.--The Proposed Rule
This alternative represents the proposed rule for screening
companies. Under this alternative, small screening companies would be
subject to all aspects of this proposed rulemaking. The cost of
compliance expected to be incurred by the 38 small entities subject to
the requirements of the proposed rule is estimated to be $13.10 million
(net present value, $9.10 million) over the next 10 years. This
alternative is preferred, because the FAA believes that it has the best
balance between costs and benefits for all screening companies while
enhancing aviation safety and security (in the form of risk reduction)
for the flying public.
VIII.C. 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. Because domestic and international air carriers use screeners,
this proposed rule change would have an equal effect on both.
VIII.D. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Public Law 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
[[Page 598]]
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 proposed ``significant
intergovernmental mandate.'' A ``significant intergovernmental
mandate'' under the Act is any provision in a Federal agency regulation
that would impose an enforceable duty upon State, local, and tribal
governments, in the aggregate, of $100 million (adjusted annually for
inflation) in any 1 year. Section 203 of the Act, 2 U.S.C. 1533, which
supplements section 204(a), provides that before establishing any
regulatory 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 proposed rule does not contain any Federal intergovernmental
mandates or private sector mandates.
VIII.E. Federalism Implications
The FAA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. The FAA has determined
that this action will not have a substantial direct effect on the
States, on the relationship between the national Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, the FAA has determined that
this final rule does not have federalism implications.
List of Subjects
14 CFR Part 108
Air carriers, Aircraft, Airmen, Airports, Arms and munitions,
Explosives, Law enforcement officers, Reporting and recordkeeping
requirements, Security measures, X-rays.
14 CFR Part 109
Administrative practice and procedure, Air carriers, Aircraft,
Freight forwarders, Reporting and recordkeeping requirements, Security
measures.
14 CFR Part 111
Administrative practice and procedure, Air carriers, Aircraft,
Certification requirements, Foreign air carriers, Indirect air
carriers, Performance standards, Reporting and recordkeeping
requirements, Screening companies, Security measures.
14 CFR Part 129
Administrative practice and procedure, Air carriers, Aircraft,
Aviation safety, Reporting and recordkeeping requirements, Security
measures, Smoking.
14 CFR Part 191
Air transportation, Security measures.
The Proposed Amendment
For the reasons stated in the preamble, the Federal Aviation
Administration proposes to amend 14 CFR chapter I as follows:
PART 108--AIRCRAFT OPERATOR SECURITY
1. The heading for part 108, proposed at 62 FR 41749, continues to
read as set forth above.
1a. The authority citation for part 108, proposed at 62 FR 41749,
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.
2. Section 108.5, proposed at 62 FR 41750, is amended by revising
paragraphs (a) and (b) to read as follows:
Sec. 108.5 Inspection authority.
(a) Each air carrier shall allow the Administrator, including FAA
special agents to make any inspections or tests at any time or place to
determine compliance of an airport operator, air carrier, foreign air
carrier, screening company, or other airport tenant with--
(1) This part;
(2) Part 111 of this chapter;
(3) The air carrier security program;
(4) Applicable screening company security program(s);
(5) 49 CFR part 175, which relates to the carriage of hazardous
materials by aircraft; and
(6) 49 U.S.C. Subtitle VII, as amended.
(b) At the request of the Administrator, each air carrier shall
provide evidence of compliance with this part, part 111 of this
chapter, its air carrier security program, and its screening company
security program(s).
* * * * *
3. Section 108.103, proposed at 62 FR 41751, is amended by adding
new paragraphs (b)(14) and (b)(15) to read as follows:
Sec. 108.103 Form, content, and availability.
* * * * *
(b) * * *
(14) A description of how the air carrier will provide oversight to
each screening company performing screening on its behalf.
(15) A description of how the air carrier will evaluate and test
screening performance.
* * * * *
4. Section 108.201, proposed at 62 FR 41752, is amended by revising
paragraph (a); removing paragraph (g); redesignating paragraph (h) as
new paragraph (g) and revising it; and by adding new paragraphs (h),
(i), (j), (k), (l), (m), and (n) to read as follows:
Sec. 108.201 Screening of persons and property, and acceptance of
cargo.
(a) Each air carrier required to conduct screening under a security
program shall use the procedures included and the facilities and
equipment described in its approved security program and its screening
company approved security program(s) to inspect each person entering a
sterile area and to inspect each person's accessible property.
* * * * *
(g) Each air carrier required to conduct screening under a security
program shall use the procedures included and the facilities and
equipment described in its approved security program and its screening
company approved security program(s) to prevent the carriage of
explosives or incendiaries onboard a passenger aircraft.
(h) Except as provided in Sec. 111.109(k) of this chapter each air
carrier required to conduct screening of persons and property at
locations within the United States under a security program shall
either hold a screening company certificate issued under part 111 of
this chapter or shall use another screening company certificated under
part 111 of this chapter to inspect persons or property for the
presence of any unauthorized explosive, incendiary, or deadly or
dangerous weapon. FAA-certified canine teams are not required to be
operated by certificated screening companies.
(i) Each air carrier shall ensure that each screening company
performing screening on its behalf conducts such screening in
accordance with part 111 of this chapter, the screening company's
security program, and the screening company's operations
specifications.
(j) Each air carrier required to conduct screening under this part
shall provide oversight to each screening company performing screening
on its behalf as specified in the air carrier's security program.
[[Page 599]]
(k) Each air carrier required to conduct screening under a security
program shall:
(1) Maintain at least one complete copy of each of its screening
companies' security programs at its principal business office;
(2) Have available complete copies or the pertinent portions of its
screening companies' security programs or appropriate implementing
instructions at each location where the screening companies conduct
screening for the air carrier;
(3) Make copies of its screening companies' security programs
available for inspection by an FAA special agent upon request;
(4) Restrict the distribution, disclosure, and availability of
information contained in its screening companies' security programs to
persons with a need to know as described in part 191 of this chapter;
and
(5) Refer requests for such information by other persons to the
Administrator.
(l) Each air carrier required by the Administrator to implement
additional security measures to maintain system performance shall
notify the public by posting signs at affected locations as specified
in its security program.
(m) At screening locations outside the United States at which an
air carrier has operational control over screening, the air carrier
shall screen as follows:
(1) The air carrier shall carry out and comply with all relevant
sections of part 111 of this chapter, except for those requirements
related to screening company certification, to the extent allowable by
local law.
(2) The air carrier may use screeners who do not meet the
requirements of Sec. 111.205(a)(3) of this chapter provided that at
least one representative of the air carrier who has the ability to read
and speak English functionally is present while the air carrier's
passengers are undergoing security screening.
(3) In the event that an air carrier is unable to implement any of
the requirements for screening, the air carrier shall notify the
Administrator of those air carrier stations or screening locations so
affected.
(n) The air carrier shall notify the Administrator of any screening
locations outside the United States at which it does have operational
control.
5. Section 108.203, proposed at 62 FR 41752, is revised to read as
follows:
Sec. 108.203 Use of metal detection devices.
(a) No air carrier may use a metal detection device to inspect
passengers, accessible property, or checked baggage unless specifically
authorized under a security program required under this part. No air
carrier may use such a device contrary to its approved security program
or its screening companies' approved program(s).
(b) Metal detection devices shall meet the calibration standards
established by the Administrator in the screening company approved
security program(s).
6. Section 108.205, proposed at 62 FR 41753, is amended by revising
paragraph (a) introductory text, removing paragraph (a)(2),
redesignating paragraph (a)(3) as new paragraph (a)(2) and revising it,
and revising paragraph (h) to read as follows:
Sec. 108.205 Use of X-ray systems.
(a) No air carrier may use any X-ray system within the United
States or under the air carrier's operational control outside the
United States to inspect accessible property or checked articles unless
specifically authorized under a security program required by this part.
No air carrier may use such a system in a manner contrary to its
approved security program or its screening company approved security
program(s). The Administrator authorizes an air carrier to use X-ray
systems for inspecting accessible property or checked articles under an
approved security program if the air carrier shows that:
* * * * *
(2) The system meets the imaging requirements set forth in the
approved screening company's standard security program.
* * * * *
(h) Unless otherwise authorized by the Administrator, each air
carrier shall ensure that each X-ray system that it uses has a
functioning threat image projection system that meets the standards set
forth in its security program.
(1) Automated X-ray threat image projection data will be collected
as specified in the air carrier's security program and in the
responsible screening company's security program.
(2) The air carrier shall make X-ray threat image projection data
available to the FAA upon request and shall allow the FAA to download
threat image projection data upon request.
7. Section 108.207, proposed at 62 FR 41753, is revised to read as
follows:
Sec. 108.207 Use of explosives detection systems.
(a) When the Administrator shall require by an amendment under
Sec. 108.105, each air carrier required to conduct screening under a
security program shall use an explosives detection system that has been
approved by the Administrator to screen checked baggage on each
international flight in accordance with its security program and its
screening companies' security programs.
(b) Unless otherwise authorized by the Administrator, each air
carrier shall ensure that each explosives detection system that it uses
has a functioning threat image projection system that meets the
standards set forth in its security program.
(1) Automated explosives detection system threat image projection
data will be collected as specified in the air carrier's security
program and in the responsible screening company's security program.
(2) The air carrier shall make explosives detection system threat
image projection data available to the FAA upon request and shall allow
the FAA to download threat image projection data upon request.
Sec. 108.209 [Removed and Reserved]
8. Section 108.209, proposed at 62 FR 41753, is removed and
reserved.
9. Section 108.227, proposed at 62 FR 41756, is amended by revising
paragraph (b) to read as follows:
Sec. 108.227 Training and knowledge of persons with security-related
duties.
* * * * *
(b) Each air carrier shall ensure that individuals performing
security-related functions for the air carrier have knowledge of the
provisions of this part, applicable security directives and information
circulars promulgated pursuant to Sec. 108.305, the approved airport
security program, the air carrier's approved security program, and the
screening company approved security program(s) to the extent that such
individuals need to know in order to perform their duties.
* * * * *
10. A new Sec. 108.229 is added to subpart C, proposed at 62 FR
41752, to read as follows:
Sec. 108.229 Monitoring of screener training tests.
Each air carrier shall monitor each screener training test required
under Sec. 111.215(a) and (c) of this chapter for all screening
companies that conduct screening on its behalf in accordance with its
security program. Each test monitor shall meet the following
qualifications:
(a) Be an air carrier employee who is not a contractor, instructor,
screener, screener-in-charge, checkpoint security supervisor, or other
screening company supervisor, unless otherwise authorized by the
Administrator.
[[Page 600]]
(b) Be familiar with the testing and grading procedures contained
in the screening company's security program.
(c) Meet other qualifications set forth in the screening company's
security program.
11. Amend Sec. 108.301, proposed at 62 FR 41757, by revising
paragraphs (b)(1) and (b)(2) to read as follows:
Sec. 108.301 Security Coordinators.
* * * * *
(b) * * *
(1) A review of all security-related functions for effectiveness
and compliance with this part, the air carrier's approved security
program, part 111 of this chapter, its screening company approved
security program(s), and applicable security directives.
(2) Immediate initiation of corrective action for each instance of
noncompliance with this part, the air carrier's approved security
program, part 111 of this chapter, its screening company approved
security program(s), and applicable security directives. At foreign
airports where such security measures are provided by agencies or
contractors of host governments, the air carriers shall notify the
Administrator for assistance in resolving noncompliance issues.
* * * * *
12. Revise part 109 to read as follows:
PART 109--INDIRECT AIR CARRIER SECURITY
Subpart A--General
Sec.
109.1 Applicability.
109.3 Definitions.
109.5 Inspection authority.
109.7 Falsification.
Subpart B--Security Program
109.101 Adoption and implementation
109.103 Form, content, and availability.
109.105 Approval and amendments.
Subpart C--Screening and Operations
109.201 Screening of cargo
109.203 Screening certificate, performance, and oversight.
109.205 Monitoring of screener training tests.
109.207 Use of X-ray systems.
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
Subpart A--General
Sec. 109.1 Applicability.
This part prescribes aviation security rules governing each
indirect air carrier (IAC) engaged indirectly in the air transportation
of property.
Sec. 109.3 Definitions.
Terms defined in parts 107, 108, 111, and 129 of this chapter apply
to this part. For purposes of this part, parts 107, 108, 111, and 129
of this chapter, and security programs required by these parts, the
following definition also applies:
Indirect air carrier means any person or entity within the United
States not in possession of an FAA air carrier operating certificate,
that undertakes to engage indirectly in air transportation of property,
and uses for all or any part of such transportation the services of a
passenger air carrier. This does not include the U.S. Postal Service
(USPS) or its representative while acting on the behalf of the USPS.
Sec. 109.5 Inspection authority.
(a) Each indirect air carrier shall allow the Administrator,
including FAA special agents to make any inspections or tests at any
time or place to determine compliance of the indirect air carrier with:
(1) This part;
(2) Part 111 of this chapter;
(3) The indirect air carrier security program;
(4) Its screening companies' security programs; and
(5) 49 CFR parts 100-199, which relate to handling and carrying
hazardous materials.
(b) At the request of the Administrator, each indirect air carrier
shall provide evidence of compliance with this part, part 111 of this
chapter, its indirect air carrier security program, and its screening
company security program(s).
Sec. 109.7 Falsification.
No person shall make or cause to be made any of the following:
(a) Any fraudulent or intentionally false statement in any
application for any security program or any amendment thereto under
this part.
(b) Any fraudulent or intentionally false entry in any record or
report that is kept, made, or used to show compliance with this part or
to exercise any privileges under this part.
(c) Any reproduction or alteration for fraudulent purpose of any
report, record, or security program issued under this part.
Subpart B--Security Program
Sec. 109.101 Adoption and implementation.
Each indirect air carrier shall adopt and carry out a security
program that meets the requirements of Sec. 109.103.
Sec. 109.103 Form, content, and availability.
(a) The security program required under Sec. 109.101 shall--
(1) Be designed to detect and prevent the introduction of any
unauthorized explosive or incendiary into cargo intended for carriage
by air;
(2) Provide that upon receipt of an approved security program or
security program amendment from the FAA, the indirect air carrier shall
acknowledge receipt of the approved security program or amendment to
the Assistant Administrator in writing and signed by the indirect air
carrier or any person delegated authority in this matter within 72
hours;
(3) Include the items listed in paragraph (b) of this section as
required by Sec. 109.101;
(4) Be in writing and signed by the indirect air carrier or any
person delegated authority in this matter; and
(5) Be approved by the Administrator.
(b) The security program shall include--
(1) A system of security safeguards acceptable to the
Administrator;
(2) The procedures and descriptions of the facilities and equipment
used to perform screening functions specified in Sec. 109.201;
(3) The procedures and descriptions of the equipment used to comply
with the requirements of Sec. 109.207 regarding the use of X-ray
systems should the indirect air carrier elect to perform screening
functions;
(4) A description of how the indirect carrier will provide
oversight to each screening company performing screening on its behalf
should the indirect air carrier elect to perform screening functions;
and
(5) A description of how the indirect air carrier will evaluate and
test the performance of screening should the indirect air carrier elect
to perform screening functions.
(c) Each indirect air carrier having an approved security program
shall--
(1) Maintain at least one complete copy of its security program at
its principal business office;
(2) Have available a complete copy or the pertinent portions of its
approved security program or appropriate implementing instructions at
each office where package cargo is accepted;
(3) Make a copy of its approved security program available for
inspection upon the request of an FAA special agent;
(4) Restrict the distribution, disclosure, and availability of
information contained in its security program to persons with an
operational need to know as described in part 191 of this chapter; and
[[Page 601]]
(5) Refer requests for such information by other persons to the
Administrator.
Sec. 109.105 Approval and amendments.
(a) Approval of Security Program. Unless otherwise authorized by
the Assistant Administrator, each indirect air carrier required to have
a security program under this part shall submit its proposed security
program to the Assistant Administrator for approval at least 30 days
before the date of intended operations. Such request shall be processed
as follows:
(1) Within 30 days after receiving the proposed indirect air
carrier security program, the Assistant Administrator will either
approve the program or give the indirect air carrier written notice to
modify the program to comply with the applicable requirements of this
part.
(2) Within 30 days of receiving a notice to modify, the indirect
air carrier may either submit a modified security program to the
Assistant Administrator for approval, or petition the Administrator to
reconsider the notice to modify. A petition for reconsideration shall
be filed with the Assistant Administrator. Except in the case of an
emergency requiring immediate action in the interest of safety, the
filing of the petition stays the notice pending a decision by the
Administrator.
(3) Upon receipt of a petition for reconsideration, the Assistant
Administrator will either amend or withdraw the notice or transmit the
petition together with any pertinent information to the Administrator
for reconsideration. The Administrator will dispose of the petition
within 30 days of receipt by either directing the Assistant
Administrator to withdraw or amend the notice to modify or by affirming
the notice to modify.
(b) Amendment requested by an indirect air carrier. An indirect air
carrier may submit a request to the Assistant Administrator to amend
its approved security program as follows:
(1) The application shall be filed with the Assistant Administrator
at least 30 days before the date that it proposes for the amendment to
become effective unless a shorter period is allowed by the Assistant
Administrator.
(2) Within 15 days after receiving a proposed amendment, the
Assistant Administrator will either approve or deny the request to
amend in writing.
(3) An amendment to an indirect air carrier security program may be
approved if the Assistant Administrator determines that safety and the
public interest will allow it and if the proposed amendment provides
the level of security required under this part.
(4) Within 30 days after receiving a denial, the indirect air
carrier may petition the Administrator to reconsider the denial.
(5) Upon receipt of a petition for reconsideration, the Assistant
Administrator will either approve the request to amend or will transmit
the petition together with any pertinent information to the
Administrator for reconsideration. The Administrator will dispose of
the petition within 30 days of receipt by either directing the
Assistant Administrator to approve the amendment or by affirming the
denial.
(c) Amendment by the FAA. If safety and the public interest require
an amendment, the Assistant Administrator may amend an approved
security program as follows:
(1) The Assistant Administrator will notify the indirect air
carrier in writing of the proposed amendment, fixing a period of not
less than 30 days within which the indirect air carrier may submit
written information, views, and arguments on the amendment.
(2) After considering all relevant material, the Assistant
Administrator will notify the indirect air carrier of any amendment
adopted or will rescind the notice. If the amendment is adopted, it
will become effective not less than 30 days after the indirect air
carrier receives the notice of amendment unless the indirect air
carrier petitions the Administrator to reconsider no later than 15 days
before the effective date of the amendment. The indirect air carrier
shall send the petition for reconsideration to the Assistant
Administrator. A timely petition for reconsideration will stay the
effective date of the amendment.
(3) Upon receipt of a petition for reconsideration, the Assistant
Administrator will either amend or withdraw the notice or will transmit
the petition together with any pertinent information to the
Administrator for reconsideration. The Administrator will dispose of
the petition within 30 days of receipt by either directing the
Assistant Administrator to withdraw or amend the notice or by affirming
the amendment.
(d) Emergency amendments. If the Assistant Administrator finds that
there is an emergency requiring immediate action with respect to safety
in air transportation or in air commerce that makes procedures in this
section contrary to the public interest, the Assistant Administrator
may issue an amendment that will become effective without stay on the
date that the indirect air carrier receives notice of it. In such a
case, the Assistant Administrator shall incorporate in the notice a
brief statement of the reasons and findings for the amendment to be
adopted. The indirect air carrier may file a petition for
reconsideration under paragraph (c) of this section; however, this will
not stay the effectiveness of the emergency amendment.
Subpart C--Screening and Operations
Sec. 109.201 Screening of cargo.
(a) Each indirect air carrier that elects to conduct screening
under a security program shall use the procedures included and the
facilities and equipment described in its approved security program and
its screening company approved security program(s) to inspect cargo and
prevent the carriage of explosives or incendiaries onboard any
aircraft.
(b) Each indirect air carrier that elects to conduct screening
under a security program shall detect and prevent the carriage of any
explosive or incendiary in cargo aboard aircraft and into sterile
areas.
Sec. 109.203 Screening certificate, performance, and oversight.
(a) Except as provided in Sec. 111.109(k) of this chapter, each
indirect air carrier that conducts screening of cargo for locations
within the United States under a security program shall either hold a
screening company certificate issued under part 111 of this chapter or
use another screening company certificated under part 111 of this
chapter to inspect property for the presence of any unauthorized
explosive or incendiary. FAA-certified canine teams are not required to
be operated by certificated screening companies.
(b) Each indirect air carrier shall ensure that each screening
company performing screening on the indirect air carrier's behalf
conducts such screening in accordance with part 111 of this chapter,
the screening company's security program, and the screening company's
operations specifications.
(c) Each indirect air carrier that conducts screening under this
part shall provide oversight to each screening company performing
screening on behalf of the indirect air carrier as specified in the
indirect air carrier's security program.
(d) Each indirect air carrier required to conduct screening under a
security program shall:
(1) Maintain at least one complete copy of each of its screening
companies' security programs at its principal business office;
(2) Have available complete copies or the pertinent portions of its
screening companies' security programs or
[[Page 602]]
appropriate implementing instructions at each location where the
screening companies conduct screening for the indirect air carrier;
(3) Make copies of its screening companies' security programs
available for inspection by an FAA special agent upon request;
(4) Restrict the distribution, disclosure, and availability of
information contained in its screening companies' security programs to
persons with a need to know as described in part 191 of this chapter;
and
(5) Refer requests for such information by other persons to the
Administrator.
Sec. 109.205 Monitoring of screener training tests.
Unless otherwise authorized by the Administrator, each indirect air
carrier shall monitor each screener training test required under
Sec. 111.215(a) and (c) of this chapter for all screening companies
that conduct screening on its behalf in accordance with its security
program. Each test monitor shall meet the following qualifications:
(a) Be an indirect air carrier employee who is not a contractor,
instructor, screener, screener-in-charge, checkpoint security
supervisor, or other screening company supervisor, unless otherwise
authorized by the Administrator.
(b) Be familiar with the testing and grading procedures contained
in the screening company's security program.
(c) Meet other qualifications set forth in the screening company's
security program.
Sec. 109.207 Use of X-ray systems.
(a) No indirect air carrier may use any X-ray system to inspect
cargo unless specifically authorized under a security program required
by this part. No indirect air carrier may use such a system in a manner
contrary to its screening company's approved security program. The
Administrator authorizes an indirect air carrier to use X-ray systems
for inspecting cargo under an approved screening security program if
the indirect air carrier shows that--
(1) The system meets the standards for cabinet X-ray systems
designed primarily for the inspection of baggage issued by the Food and
Drug Administration (FDA) and published in 21 CFR 1020.40; and
(2) The system meets the imaging requirements set forth in the
approved screening security program.
(b) No indirect air carrier may use any X-ray system unless a
radiation survey is conducted within the preceding 12 calendar months
which shows that the system meets the applicable performance standards
in 21 CFR 1020.40.
(c) No indirect air carrier may use any X-ray system after the
system has been installed at a screening location or after the system
has been moved unless a radiation survey is conducted which shows that
the system meets the applicable performance standards in 21 CFR
1020.40. A radiation survey is not required for an X-ray system that is
designed and constructed as a mobile unit and the indirect air carrier
shows that it can be moved without altering its performance.
(d) No indirect air carrier may use any X-ray system that is not in
full compliance with any defect notice or modification order issued for
that system by the FDA unless the FDA has advised the FAA that the
defect or failure to comply does not create a significant risk of
injury, including genetic injury, to any person.
(e) No indirect air carrier may use any X-ray system to inspect
cargo unless a sign is posted in a conspicuous place at the receiving
area or written notification is provided to inform individuals that
items are being inspected by an X-ray and advise them to remove all X-
ray, scientific, and high-speed film from their cargo before
inspection. This sign or written notification also shall advise
individuals that they may request that inspections be made of their
photographic equipment and film packages without exposure to X-ray
systems. If an X-ray system exposes any cargo to more than 1
milliroentgen during inspection, the indirect air carrier shall post a
sign that advises individuals to remove film of all kinds from their
cargo before inspection.
(f) Each indirect air carrier shall maintain at least one copy of
the results of the most recent radiation survey conducted under
paragraph (b) or (c) of this section and shall make it available for
inspection upon request by the Administrator at each of the following
locations:
(1) The indirect air carrier's principal business office.
(2) The place where the X-ray system is in operation.
(g) The American Society for Testing and Materials Standard F792-
88, ``Design and Use of Ionizing Radiation Equipment for the Detection
of Items Prohibited in Controlled Access Areas,'' is incorporated by
reference in this section and made a part of this section pursuant to 5
U.S.C. 552(a)(1). All persons affected by this section may obtain
copies of the standard from the American Society for Testing and
Materials, 1916 Race Street, Philadelphia, Pennsylvania 19103.
(h) Unless otherwise authorized by the Administrator, each indirect
air carrier shall ensure that each X-ray system that it uses has a
functioning threat image projection system that meets the standards set
forth in its security program.
(1) Automated X-ray threat image projection data will be collected
as specified in the indirect air carrier security program and in the
responsible screening company's security program.
(2) The indirect air carrier shall make X-ray threat image
projection data available to the FAA upon request and shall allow the
FAA to download threat image projection data upon request.
13. A new part 111 is added to subchapter F to read as follows:
PART 111--SCREENING COMPANY SECURITY
Subpart A--General
Sec.
111.1 Applicability.
111.3 Definitions.
111.5 Inspection authority.
111.7 Falsification.
111.9 Prohibition against interference with screening personnel.
Subpart B--Security Program, Certificate, and Operations Specifications
111.101 Performance of screening.
111.103 Security program: Adoption and implementation.
111.105 Security program: Form, content, and availability.
111.107 Security program: Approval and amendments.
111.109 Screening company certificate.
111.111 Operations specifications: Adoption and implementation.
111.113 Operations specifications: Form, content, and availability.
111.115 Operations specifications: Approval, amendments, and
limitations.
111.117 Oversight by air carriers, foreign air carriers, or
indirect air carriers.
111.119 Business office.
Subpart C--Operations
111.201 Screening of persons and property and acceptance of cargo.
111.203 Use of screening equipment.
111.205 Employment standards for screening personnel.
111.207 Disclosure of sensitive security information.
111.209 Screening company management.
111.211 Screening company instructor qualifications.
111.213 Training and knowledge of persons with screening-related
duties.
111.215 Training tests: Requirements.
111.217 Training tests: Cheating and other unauthorized conduct.
111.219 Screener letter of completion of training.
111.221 Screener and supervisor training records.
111.223 Automated performance standards.
[[Page 603]]
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705, 44707, 44901-44905, 44907, 44913-44914, 44932, 44935-44936,
46105.
Subpart A--General
Sec. 111.1 Applicability.
This part prescribes the requirements for the certification and
operation of screening companies. This part applies to all of the
following:
(a) Each screening company that screens for an air carrier under
part 108 of this chapter, for an indirect air carrier under part 109 of
this chapter, or for a foreign air carrier under part 129 of this
chapter.
(b) All persons conducting screening within the United States under
this part, part 108, part 109, or part 129 of this chapter by
inspecting persons or property for the presence of unauthorized
explosives, incendiaries, or deadly or dangerous weapons.
(c) Each air carrier, foreign air carrier, and indirect air carrier
required to conduct screening under this chapter.
(d) All persons who interact with screening personnel during
screening.
Sec. 111.3 Definitions.
Terms defined in parts 107, 108, 109, and 129 of this chapter apply
to this part. For purposes of this part, parts 107, 108, 109, and 129
of this chapter, and security programs under these parts, the following
definitions also apply:
Carrier means an air carrier under part 108 of this chapter,
indirect air carrier under part 109 of this chapter, or foreign air
carrier under part 129 of this chapter.
Screening company means a carrier or other entity that inspects
persons or property for the presence of any unauthorized explosive,
incendiary, or deadly or dangerous weapon, as required under this part,
before entry into a sterile area or carriage aboard an aircraft.
Screening company security program means the security program
approved by the Administrator under this part.
Screening location means each site at which persons or property are
inspected for the presence of any unauthorized explosive, incendiary,
or deadly or dangerous weapon.
Sec. 111.5 Inspection authority.
(a) Each screening company shall allow the Administrator to make
inspections or tests at any time or place to determine compliance with
all of the following:
(1) This part.
(2) The screening company's security program.
(3) The screening company's operations specifications.
(4) Part 108, 109, or 129 of this chapter, as applicable.
(b) At the request of the Administrator, a screening company shall
provide evidence of compliance with this part, its security program,
and its operations specifications.
Sec. 111.7 Falsification.
No person may make or cause to be made any of the following:
(a) Any fraudulent or intentionally false statement in any
application for any security program, certificate, or operations
specifications or any amendment thereto under this part.
(b) Any fraudulent or intentionally false entry in any record or
report that is kept, made, or used to show compliance with this part or
to exercise any privileges under this part.
(c) Any reproduction or alteration for fraudulent purpose of any
report, record, security program, certificate, or operations
specifications issued under this part.
Sec. 111.9 Prohibition against interference with screening personnel.
No person may interfere with, assault, threaten, or intimidate
screening personnel in the performance of their screening duties.
Subpart B--Security Program, Certificate, and Operations
Specifications
Sec. 111.101 Performance of screening.
Each screening company shall conduct screening and screener
training required under this part in compliance with the requirements
of this part, its approved security program, its approved operations
specifications, and applicable portions of security directives and
emergency amendments to security programs issued under part 108, 109,
129 of this chapter, and this part.
Sec. 111.103 Security program: Adoption and implementation.
Each screening company shall adopt and carry out an FAA-approved
security program that meets the requirements of Sec. 111.105.
Sec. 111.105 Security program: Form, content, and availability.
(a) A security program required under Sec. 111.103 shall:
(1) Provide for the safety of persons and property traveling on
flights provided by air carriers and/or foreign air carriers for which
the screening company screens against acts of criminal violence and air
piracy and the introduction of explosives, incendiaries, or deadly or
dangerous weapons aboard aircraft.
(2) Provide that upon receipt of an approved security program or
security program amendment, the screening company screening performance
coordinator shall acknowledge receipt of the approved security program
or amendment in a signed, written statement to the FAA within 72 hours.
(3) Include the items listed in paragraph (b) of this section as
required by Sec. 111.103.
(4) Be approved by the Administrator.
(b) The security program shall include all of the following:
(1) The procedures used to perform screening functions specified in
Sec. 111.201.
(2) The testing standards and training guidelines for screening
personnel and instructors.
(3) The performance standards and operating requirements for threat
image projection systems.
(c) Each screening company having an approved security program
shall:
(1) Maintain at least one complete copy of the security program at
its principal business office.
(2) Have available a complete copy of its approved security program
at each airport served.
(3) Make a copy of its approved security program available for
inspection by an FAA special agent upon request.
(4) Restrict the distribution, disclosure, and availability of
information contained in its security program to persons with a need to
know as described in part 191 of this chapter.
(5) Refer requests for such information by other persons to the
Administrator.
Sec. 111.107 Security program: Approval and amendments.
(a) Approval of security program. Unless otherwise authorized by
the Assistant Administrator, each screening company required to have a
security program under this part shall within 30 days of receiving the
screening standard security program from the FAA submit a signed,
written statement to the Assistant Administrator indicating one of the
following: the screening company will adopt the Screening Standard
Security Program as is, or the screening company will adopt the
Screening Standard Security Program after making amendments to it. FAA
approval of a security program will be as follows:
(1) If the screening company chooses to adopt the Screening
Standard Security Program as is, the granting of the screening company
certificate by the Assistant Administrator will serve as
[[Page 604]]
FAA approval of the screening company's security program.
(2) If the screening company chooses to adopt the Screening
Standard Security Program after making amendments to it or to submit
its own security program that meets the requirements of Sec. 111.103 to
the FAA, the request will be processed as follows:
(i) Within 30 days after receiving the screening company's security
program, the Assistant Administrator will either approve the program or
will give the screening company written notice to modify its program to
comply with the applicable requirements of this part.
(ii) Within 30 days of receiving a notice to modify, the screening
company may either submit a modified security program to the Assistant
Administrator for approval or petition the Administrator to reconsider
the notice to modify. A petition for reconsideration shall be filed
with the Assistant Administrator. Except in the case of an emergency
requiring immediate action in the interest of safety, the filing of the
petition stays the notice pending a decision by the Administrator.
(iii) Upon receipt of a petition for reconsideration, the Assistant
Administrator will amend or withdraw the notice or will transmit the
petition together with any pertinent information to the Administrator
for reconsideration. The Administrator will dispose of the petition
within 30 days of receipt by directing the Assistant Administrator to
withdraw or amend the notice to modify or by affirming the notice to
modify.
(iv) The granting of a screening company certificate by the
Assistant Administrator will serve as FAA approval of a screening
company's security program.
(b) Amendment requested by a screening company. A screening company
may submit a request to the Assistant Administrator to amend its
approved security program as follows:
(1) The application shall be filed with the Assistant Administrator
at least 45 days before the date that it proposes for the amendment to
become effective unless a shorter period is allowed by the Assistant
Administrator. The screening company shall include with its application
a statement that all air carriers for which it screens have been
advised of the proposed amendment and have no objection to the proposed
amendment. The screening company shall include the name and phone
number of each individual from each air carrier who was advised.
(2) Within 30 days after receiving a proposed amendment, the
Assistant Administrator will either approve or deny the request to
amend in writing.
(3) An amendment to a screening company security program may be
approved if the Assistant Administrator determines that safety and the
public interest will allow it and if the proposed amendment provides
the level of security required under this part.
(4) Within 30 days after receiving a denial, the screening company
may petition the Administrator to reconsider the denial.
(5) Upon receipt of a petition for reconsideration, the Assistant
Administrator will either approve the request to amend or will transmit
the petition together with any pertinent information to the
Administrator for reconsideration. The Administrator will dispose of
the petition within 30 days of receipt by either directing the
Assistant Administrator to approve the amendment or by affirming the
denial.
(c) Amendment by the FAA. If safety and the public interest require
an amendment, the Assistant Administrator may amend an approved
security program as follows:
(1) The Assistant Administrator will notify the screening company
and carrier(s) in writing of the proposed amendment, fixing a period of
not less than 30 days within which the screening company and carrier(s)
may submit written information, views, and arguments on the amendment.
(2) After considering all relevant material, the Assistant
Administrator will notify the screening company and carrier(s) of any
amendment adopted or will rescind the notice. If the amendment is
adopted, it will become effective not less than 30 days after the
screening company and carrier(s) receive the notice of amendment unless
the screening company or carrier(s) petition(s) the Administrator to
reconsider no later than 15 days before the effective date of the
amendment. The screening company or carrier(s) shall send the petition
for reconsideration to the Assistant Administrator. A timely petition
for reconsideration stays the effective date of the amendment.
(3) Upon receipt of a petition for reconsideration, the Assistant
Administrator will either amend or withdraw the notice or will transmit
the petition together with any pertinent information to the
Administrator for reconsideration. The Administrator will dispose of
the petition within 30 days of receipt by either directing the
Assistant Administrator to withdraw or amend the notice or by affirming
the amendment.
(d) Emergency amendments. Notwithstanding paragraphs (a), (b), and
(c) of this section, if the Assistant Administrator finds that there is
an emergency requiring immediate action with respect to safety in air
transportation or in air commerce that makes procedures in this section
contrary to the public interest, the Assistant Administrator may issue
an amendment that will become effective without stay on the date that
the screening company and carrier(s) receive notice of it. In such a
case, the Assistant Administrator shall incorporate in the notice a
brief statement of the reasons and findings for the amendment to be
adopted. The screening company or carrier(s) may file a petition for
reconsideration under paragraph (c) of this section; however, this will
not stay the effectiveness of the emergency amendment.
Sec. 111.109 Screening company certificate.
(a) Certificate required. No person may perform any screening
required under this part or part 108, 109 or 129 of this chapter except
under the authority of and in accordance with the provisions of a
screening company certificate issued under this part.
(b) Application. An application for a provisional screening company
certificate, a screening company certificate, or a screening company
certificate renewal is made in a form and a manner prescribed by the
Administrator. The application shall include at a minimum the
information that will be placed on the certificate under paragraph (f)
of this section and the information that will be contained in the
operations specifications under Sec. 111.113(b).
(c) Issuance and renewal. An applicant for a provisional screening
company certificate, a screening company certificate, or a screening
company certificate renewal is entitled to a certificate if the
following are met:
(1) The applicant applies for a certificate as provided in this
section not less than 90 days before--
(i) The applicant intends to begin screening; or
(ii) The applicant's current certificate expires.
(2) For the issuance of a provisional screening company
certificate, the Administrator finds after investigation that the
applicant is able to meet the requirements of this part to include
adopting and carrying out an FAA-approved security program and approved
operations specifications.
(3) For the issuance or renewal of a screening company certificate,
the Administrator determines that the
[[Page 605]]
applicant has met the requirements of this part, its screening company
security program, and its approved operations specifications. The
applicant's failure to meet the performance standards set forth in the
security program is grounds for denial or withdrawal of the screening
company certificate.
(4) The issuance of the certificate is not contrary to the
interests of aviation safety and security.
(5) The applicant has not held a provisional or a screening company
certificate that was revoked within the previous year, unless otherwise
authorized by the Administrator.
(d) Provisional certificate. (1) A person who does not hold a
screening company certificate may be issued a provisional screening
company certificate.
(2) Unless otherwise authorized by the Administrator, the holder of
a provisional screening company certificate may not begin screening at
any screening location unless it notifies the Administrator 7 days
before beginning such screening.
(3) The Administrator may prescribe the conditions under which a
provisionally certificated screening company may operate while it is
beginning screening at a new location.
(e) Screening company certificate. (1) The holder of a provisional
screening company certificate may be issued a screening company
certificate.
(2) The holder of a screening company certificate may renew its
certificate.
(f) Certificate contents. A screening company certificate contains
the following information:
(1) The name of the screening company and any names under which it
will do business as a certificated screening company.
(2) Certificate issuance date.
(3) Certificate expiration date.
(4) Certificate number.
(5) Such other information as the Administrator determines
necessary.
(g) Duration. (1) Unless sooner suspended, revoked, or surrendered,
a provisional screening company certificate will expire at the end of
the 12th month after the month in which it was issued.
(2) Unless sooner suspended, revoked, surrendered, or expired under
paragraph (g)(3) of this section, a screening company certificate will
expire at the end of the 60th month after the month in which it was
issued or renewed.
(3) If a screening company has not performed screening on behalf of
a carrier during the previous 12 calendar months, its certificate will
be deemed to have expired, and the company will no longer be authorized
to conduct screening under this part.
(h) Return of certificate. The holder of a screening company
certificate that is expired, suspended, or revoked shall return it to
the Administrator within 7 days.
(i) Amendment of certificate. (1) A screening company shall apply
for an amendment to its screening company certificate in a form and
manner prescribed by the Administrator if it intends to change the name
of its screening company, and/or any names under which it will do
business as a certificated screening company.
(2) The holder of a screening company certificate requiring
amendment shall return the certificate to the Administrator within 7
days for appropriate amendment.
(j) Inspection. A screening company certificate shall be made
available for inspection upon request by the Administrator.
(k) Compliance dates. A carrier may use a company not certificated
under this part to perform screening required under part 108, part 109,
or part 129 of this chapter if the company performed required screening
for a carrier at any time on or after [date 1 year before effective
date of final rule] through [effective date of final rule] and if all
of the following apply:
(1) The company submits an application as required by paragraph (b)
of this section for a provisional certificate on or before [date 60
days after effective date of the final rule].
(2) The FAA has not issued under this part a denial of a screening
company certificate to the company.
Sec. 111.111 Operations specifications: Adoption and implementation.
No screening company may perform screening under this part unless
the company adopts and complies with operations specifications that
meet the requirements of this part.
Sec. 111.113 Operations specifications: Form, content, and
availability.
(a) Operations specifications required by this part shall--
(1) Be in writing and signed by the screening company;
(2) Include the items listed in paragraph (b) of this section; and
(3) Be approved by the Administrator.
(b) Operations specifications required by this part shall include--
(1) Locations at which the Administrator has authorized a company
to conduct screening required under this part, part 108, part 109, or
part 129 of this chapter;
(2) The types of screening that the Administrator has authorized
the company to perform which include persons, accessible property,
checked baggage, and cargo;
(3) The equipment and methods of screening that the Administrator
has authorized the company to operate and carry out;
(4) The title and name of the person required by Sec. 111.209(b);
(5) Procedures to notify the Administrator and any carrier for
which it is performing screening in the event that the procedures,
facilities, or equipment that it is using are not adequate to perform
screening under this part;
(6) The curriculum used to train screeners;
(7) A statement signed by the person required by Sec. 111.209(b) on
behalf of the company confirming that the information contained in the
operations specifications is true and correct; and
(8) Any other subjects that the Administrator deems necessary.
(c) Each screening company having approved operations
specifications shall--
(1) Maintain at least one complete copy of the operations
specifications at its principal business office;
(2) Maintain a complete copy or the pertinent portions of its
approved operations specifications at each airport where it conducts
security training;
(3) Ensure that its operations specifications are amended so as to
maintain current descriptions of the screening company and its
services, procedures, and facilities;
(4) Make its operation specifications available to the
Administrator for inspection upon request;
(5) Provide current operations specifications to each carrier for
which it screens;
(6) With the exception of information described in paragraph (b)(1)
of this section, restrict the availability of information contained in
the operations specifications to those persons with an operational need
to know as provided in Sec. 191.5(b) of this chapter; and
(7) Refer requests for such information by other persons to the
Administrator.
Sec. 111.115 Operations specifications: Approval, amendments, and
limitations.
(a) Each applicant for a provisional screening company certificate
shall submit its proposed operations specifications to the
Administrator when applying for a provisional screening company
certificate. After receiving the proposed operations specifications,
the Administrator will approve the operations specifications or will
notify the applicant to modify its operations specifications to comply
[[Page 606]]
with the applicable requirements of this part. The applicant may
petition the Administrator to reconsider the notice to modify. A
petition shall be submitted no later than 15 days from the date that a
notice to modify is issued.
(b) The Administrator may amend approved operations specifications
if it is determined that safety and the public interest require the
amendment as follows:
(1) The Administrator notifies the screening company in writing of
the proposed amendment, fixing a period of not less than 30 days within
which it may submit written information, views, and arguments on the
amendment.
(2) After considering all relevant material, the Administrator
notifies the screening company of any amendment adopted or rescinds the
notice. The amendment will become effective not less than 30 days after
the screening company certificate holder receives the notice unless the
certificate holder petitions the Administrator to reconsider the
amendment, in which case the effective date will be stayed by the
Administrator.
(3) If the Administrator finds that there is an emergency requiring
immediate action with respect to safety in air transportation or in air
commerce that makes the procedures in this paragraph impracticable or
contrary to safety or the public interest, the Administrator may issue
an amendment that will become effective without stay on the date that a
screening company receives notice of it. In such a case, the
Administrator will incorporate the findings and a brief statement of
the reasons for it in the notice of the amendment to be adopted.
(c) A screening company may submit a request to the Assistant
Administrator to amend its operations specifications. The application
shall be filed with the Assistant Administrator at least 30 days before
the date that it proposes for the amendment to become effective unless
a shorter period is allowed by the Assistant Administrator. The
Assistant Administrator will approve or deny a request within 15 days
after receiving the proposed amendment. Within 30 days after receiving
from the Assistant Administrator a notice of refusal to approve an
application for amendment, the applicant may petition the Administrator
to reconsider the refusal to amend.
(d) The FAA may limit the specific locations at which a screening
company may operate if it determines that the company's operations are
contrary to the interests of aviation safety and security.
Sec. 111.117 Oversight by air carriers, foreign air carriers, or
indirect air carriers.
(a) Each screening company shall allow any air carrier, foreign air
carrier, or indirect air carrier for which it is performing screening
under part 108, part 109, or part 129 of this chapter to do the
following:
(1) Inspect the screening company's facilities, equipment, and
records to determine the screening company's compliance with this part,
the screening company's security program, and the screening company's
operations specifications.
(2) Test the performance of the screening company using procedures
specified in the applicable security program(s).
(b) Each screening company holding a certificate under this part
shall provide a copy of each letter of investigation and final
enforcement action to each carrier using the screening location where
the alleged violation occurred. The copy shall be provided to the
applicable carrier's corporate security officer within 3 business days
of receipt of the letter of investigation or final enforcement action.
Sec. 111.119 Business office.
(a) Each screening company shall maintain a principal business
office with a mailing address in the name shown on its certificate.
(b) Each screening company shall notify the Administrator before
changing the location of its business. The notice shall be submitted in
writing at least 30 days before the change.
Subpart C--Operations
Sec. 111.201 Screening of persons and property and acceptance of
cargo.
(a) Each screening company shall use the procedures included in its
approved security program to:
(1) Inspect each person entering a sterile area;
(2) Inspect each person's accessible property entering a sterile
area; and
(3) Prevent or deter the introduction into a sterile area of any
explosive, incendiary, or deadly or dangerous weapon on or about each
person or the person's accessible property.
(b) Each screening company shall deny entry into a sterile area at
a checkpoint to:
(1) Any person who does not consent to a search of his or her
person in accordance with the screening system prescribed in paragraph
(a) of this section; and
(2) Any property of any person who does not consent to a search or
inspection of that property in accordance with the screening system
prescribed by paragraph (a) of this section.
(c) The provisions of paragraph (a) of this section with respect to
firearms and weapons do not apply to the following:
(1) Law enforcement personnel required to carry firearms or other
weapons while in the performance of their duties at airports.
(2) Persons authorized to carry firearms in accordance with
Sec. 108.213, 108.215, 108.217, or 129.27 of this chapter.
(3) Persons authorized to carry firearms in sterile areas under
FAA-approved or FAA-accepted security programs.
(d) Each screening company shall staff the screening locations that
it operates with supervisory and nonsupervisory personnel in accordance
with the standards specified in its security program.
(e) Each screening company shall use the procedures included in its
approved security program to:
(1) Inspect checked baggage, or cargo presented for inspection by a
carrier; and
(2) Prevent or deter the carriage of explosives or incendiaries in
checked baggage or cargo onboard passenger aircraft.
Sec. 111.203 Use of screening equipment.
(a) Each screening company shall operate all screening equipment in
accordance with its approved security program.
(b) The Administrator authorizes a certificated screening company
to use X-ray systems for inspecting property under an approved security
program if the screening company shows that:
(1) A program for initial and recurrent training of operators of
the system that includes training in radiation safety, the efficient
use of X-ray systems, and the identification of unauthorized weapons,
explosives, incendiaries, and other dangerous articles is established.
(2) The system meets the imaging requirements set forth in its
approved security program.
(c) If requested by individuals, their photographic equipment and
film packages shall be inspected without exposure to X-ray or
explosives detection systems.
(d) Each screening company shall comply with the X-ray duty time
limitations specified in its approved security program.
Sec. 111.205 Employment standards for screening personnel.
(a) No screening company shall use any person to perform any
screening
[[Page 607]]
function in the United States unless that person has:
(1) A high school diploma, a General Equivalency Diploma, or a
combination of education and experience that the screening company has
determined to have equipped the person to perform the duties of the
screening position.
(2) Basic aptitudes and physical abilities including color
perception, visual and aural acuity, physical coordination, and motor
skills to the following standards:
(i) Screeners shall be able to identify the components that may
constitute an explosive or an incendiary;
(ii) Screeners shall be able to identify objects that appear to
match those items described in all current security directives and
emergency amendments;
(iii) Screeners operating X-ray and explosives detection system
equipment shall be able to distinguish on the equipment monitors the
appropriate imaging standards specified in the screening company's
approved security program;
(iv) Screeners operating any screening equipment shall be able to
distinguish each color displayed on every type of screening equipment
and explain what each color signifies;
(v) Screeners shall be able to hear and respond to the spoken voice
and to audible alarms generated by screening equipment in an active
checkpoint or other screening environment;
(vi) Screeners performing manual searches or other related
operations shall be able to efficiently and thoroughly manipulate and
handle such baggage, containers, cargo, and other objects subject to
security processing;
(vii) Screeners performing manual searches of cargo shall be able
to use tools that allow for opening and closing boxes, crates, or other
common cargo packaging;
(viii) Screeners performing screening of cargo shall be able to
stop the transfer of suspect cargo to passenger air carriers; and
(ix) Screeners performing pat-down or hand-held metal detector
searches of persons shall have sufficient dexterity and capability to
thoroughly conduct those procedures over a person's entire body.
(3) The ability to read, speak, write, and understand English well
enough to:
(i) Carry out written and oral instructions regarding the proper
performance of screening duties;
(ii) Read English language identification media, credentials,
airline tickets, documents, air waybills, invoices, and labels on items
normally encountered in the screening process;
(iii) Provide direction to and understand and answer questions from
English-speaking persons undergoing screening or submitting cargo for
screening; and
(iv) Write incident reports and statements and log entries into
security records in the English language.
(4) Satisfactorily completed all initial, recurrent, and
appropriate specialized training required by the screening company's
security program. Initial and recurrent training for all screeners
shall include, but is not limited to, the following:
(i) The conduct of screening of persons in a courteous and
efficient manner.
(ii) Compliance with the applicable civil rights laws of the United
States.
(5) For persons with supervisory screening duties, initial and
recurrent training shall include leadership and management subjects as
specified in the screening company's security program.
(b) Notwithstanding the provisions of paragraph (a)(4) of this
section, the screening company may use a person during the on-the-job
portion of training to perform security functions provided that the
person is closely supervised and does not make independent judgments as
to whether persons or property may enter sterile areas or aircraft or
whether cargo may be loaded aboard aircraft without further inspection.
(c) No screening company shall use a person to perform a screening
function after that person has failed an operational test related to
that function until that person has successfully completed the remedial
training specified in the screening company's security program.
(d) Each air carrier with a ground security coordinator and each
foreign air carrier and indirect air carrier with a screening
supervisor shall ensure that that person conducts and documents an
annual evaluation of each person assigned screening duties. The ground
security coordinator or supervisor may continue that person's
employment in a screening capacity only upon determining that the
person:
(1) Has not suffered a significant diminution of any physical
ability required to perform a screening function since the last
evaluation of those abilities;
(2) Has a satisfactory record of performance and attention to duty
based on the standards and requirements in the approved screening
company's security program; and
(3) Demonstrates the current knowledge and skills necessary to
perform screening functions courteously, vigilantly, and effectively.
Sec. 111.207 Disclosure of sensitive security information.
(a) Each screening company shall ensure that for each screener
trainee who will be required to have an employment history
verification, the steps in Sec. 107.207(c)(1), (2), (3), and (4), or
Sec. 108.221(c)(1), (2), (3), and (4) of this chapter have been
completed before the screener trainee receives sensitive security
information as defined in part 191 of this chapter.
(b) If the employee application, employment verification, or
criminal history record check has disclosed that the trainee has a
history of a disqualifying crime as provided in Sec. 107.207(b)(2) or
Sec. 108.221(b)(2) of this chapter, no sensitive security information
may be provided to that trainee.
(c) If a criminal history record check has been requested under
Sec. 108.221(c)(5) of this chapter, the trainee may receive sensitive
security information unless and until the results of the record check
disclose a disqualifying crime.
Sec. 111.209 Screening company management.
(a) Each screening company shall have sufficient qualified
management and technical personnel to ensure the highest degree of
safety in its screening.
(b) Each screening company shall designate a screening performance
coordinator (SPC) as the primary point of contact for security-related
activities and communications with the FAA and carrier.
(1) To serve as a screening performance coordinator under this
part, a person shall have the following:
(i) Except as provided in paragraph (e) of this section, at least 1
year of supervisory or managerial experience within the last 3 years in
a position that exercised control over any aviation security screening
required under this part or part 108, 109, or 129 of this chapter.
(ii) Successfully completed the initial security screener training
course, including the end of course FAA exam.
(2) Each screening company shall notify the Administrator within 10
days of any screening performance coordinator change or any vacancy.
(c) Each screening performance coordinator shall to the extent of
his or her responsibilities have a working knowledge of the following
with respect to the screening company's operations:
(1) This part.
(2) Part 108, 109, or 129 and part 191 of this chapter.
[[Page 608]]
(3) The screening company's security program.
(4) The screening company's operations specifications.
(5) All relevant statutes.
(6) All relevant technical information and manuals regarding
screening equipment, security directives, advisory circulars, and
information circulars on aviation security.
(d) Before [date 3 years after effective date of final rule], the
Administrator may authorize an individual who does not meet the
standard required in paragraph (b)(1)(i) of this section to serve as
the screening performance coordinator for screening under part 109 of
this chapter.
Sec. 111.211 Screening company instructor qualifications.
(a) No screening company shall use any person as a classroom
instructor unless that person meets the requirements of this part.
(b) To be eligible for designation as a security screening
instructor for a course of training, a person shall have a minimum of
40 hours of actual experience as a security screener making independent
judgments, unless otherwise authorized by the Administrator.
(c) An instructor shall pass the FAA screener knowledge-based and
performance tests for each type of screening to be taught and for the
procedures and equipment for which the instructor will provide
training, unless otherwise authorized by the Administrator.
(d) An instructor may not be used in an approved course of training
until he or she has been briefed regarding the objectives and standards
of the course.
(e) This section does not prevent a screening company's using guest
speakers or persons in training as instructors if they are under the
direct supervision of a qualified security screening instructor who is
readily available for consultation.
Sec. 111.213 Training and knowledge of persons with screening-related
duties.
(a) No screening company may use any screener, screener-in-charge,
and checkpoint security supervisor unless that person has received
initial and recurrent training as specified in the screening company's
approved security program, including the responsibilities in
Sec. 111.105.
(b) Each screening company shall submit its training programs for
screeners, screeners-in-charge, and checkpoint security supervisors for
approval by the Administrator.
(c) Each screening company shall ensure that individuals performing
as screeners, screeners-in-charge, and checkpoint security supervisors
for the screening company have knowledge of the provisions of this
part, the screening company's security program, and applicable security
directive, emergency amendment, and information circular information to
the extent that such individuals need to know in order to perform their
duties.
Sec. 111.215 Training tests: Requirements.
(a) Each screening company shall ensure that each screener trainee
passes an FAA screener readiness test for each type of screening to be
performed and for the procedures and equipment to be used prior to
beginning on-the-job training.
(b) Each screening company shall ensure that each screener
completes 40 hours of on-the-job training and passes an FAA on-the-job
training test before exercising independent judgment as a screener.
(c) Each screening company shall ensure that each screener passes
an FAA review test at the conclusion of his or her recurrent training.
(d) Unless otherwise authorized by the Administrator, each
screening company shall use computer-based testing to administer FAA
tests for screener readiness, on-the-job training, and recurrent
training.
(e) Each screening company shall ensure that each test that it
administers under paragraphs (a) and (c) of this section is monitored
by an employee of the carrier for which it screens.
Sec. 111.217 Training tests: Cheating or other unauthorized conduct.
Except as authorized by the Administrator, no person may:
(a) Copy or intentionally remove a knowledge-based or performance
test under this part;
(b) Give to another or receive from another any part or copy of
that test;
(c) Give help on that test to or receive help on that test from any
person during the period that the test is being given;
(d) Take any part of that test on behalf of another person;
(e) Use any material or aid during the period that the test is
being given; or
(f) Cause, assist, or participate intentionally in any act
prohibited by this paragraph.
Sec. 111.219 Screener letter of completion of training.
(a) Each screening company shall issue letters of completion of
training to screeners, screeners-in-charge, and checkpoint security
supervisors upon each successful completion of their approved initial,
recurrent, and specialized courses of training.
(b) Each letter shall contain at least the following information:
(1) The name of the company and the number of the screening company
certificate.
(2) The name of the screener to whom it is issued.
(3) The course of training for which it is issued.
(4) The type(s) of screening the screener has been trained to
perform, which may include persons, accessible property, checked
baggage, and cargo.
(5) The equipment and methods of screening that the screener has
been trained to operate and carry out.
(6) The date of completion.
(7) A statement that the trainee has satisfactorily completed each
required stage of the approved course of training, including the tests
for those stages.
(8) The signature of a supervisory-level individual (ground
security coordinator, checkpoint security supervisor, or screener-in-
charge).
Sec. 111.221 Screener and supervisor training records.
(a) Whenever a screener, screener-in-charge, or checkpoint security
supervisor completes or terminates his or her training or transfers to
another company, the screening company shall annotate the employee's
record to that effect.
(b) The screening company shall upon request of a screener,
screener-in-charge, or checkpoint security supervisor make a copy of
the employee's training record available to the employee within 4 days
of his or her request.
(c) A screener, screener-in-charge, or checkpoint security
supervisor who has been issued a letter of completion of training may
request in writing that the screening company provide to another
certificated screening company or a screening company that has applied
for a screening company certificate a complete copy of the employee's
training and performance records. Upon receiving such a request, the
screening company shall provide the records to the second company
within 7 days. Any company receiving records from another company may
use the screener, screener-in-charge, or checkpoint security supervisor
without providing retraining if the company provides transition
training as specified in its security program, unless an evaluation of
the employee's training shows the results to be unsatisfactory or the
employee has not performed screening functions for 1 year or more.
(d) A screening company may request from another screening company
records for a screener, screener-in-charge, or checkpoint security
[[Page 609]]
supervisor as described in paragraph (c) of this section when a signed
consent form has been provided by the employee whose records are to be
requested.
(e) Upon the termination of screening services at a site, a
screening company shall surrender all original records required under
this part to the carrier for which it was conducting screening under
this part.
(f) Records of training, testing, and certification shall be made
available promptly to FAA special agents upon request and shall be
maintained for a period of at least 180 days following the termination
of duty for a screener, screener-in-charge, or checkpoint security
supervisor. Test records will include all tests to which the employee
was subjected, not just those satisfactorily completed.
Sec. 111.223 Automated performance standards.
(a) Each screening company shall use a threat image projection
system for each X-ray and explosives detection system that it operates
as specified in its security program to measure the performance of
individual screeners, screening locations, and screening companies.
(b) Each screening company shall meet the performance standards set
forth in its security program.
PART 129--OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF
U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE
14. The authority citation for part 129 is revised to read as
follows:
Authority: 49 U.S.C. 106(g), 40104-40105, 40113, 40119, 44701-
44702, 44712, 44716-44717, 44722, 44901-44904, 44906, 44935 note.
15. Amend Sec. 129.25 by revising paragraph (a); by removing
``and'' at the end of paragraph (c)(3); by removing the period at the
end of paragraph (c)(4) and adding a semicolon in its place; by adding
new paragraphs (c)(5) and (c)(6); by revising paragraphs (e)(2),
(e)(3), (e)(4), and (j); and by adding new paragraphs (k), (l), (m),
(n), (o), and (p) to read as follows:
Sec. 129.25 Airplane security.
(a) Terms defined in parts 107, 108, 109, and 111 of this chapter
apply to this part. For purposes of this part, parts 107, 108, 109, and
111 of this chapter, and security programs under these parts, the
following definitions also apply:
* * * * *
(c) * * *
(5) Include within it a description of how the foreign air carrier
will provide oversight to each screening company performing screening
on its behalf; and
(6) Include within it a description of how the foreign air carrier
will evaluate and test the performance of screening.
* * * * *
(e) * * *
(2) A foreign air carrier may submit a request to the Assistant
Administrator to amend its accepted security program as follows:
(i) The application shall be filed with the Assistant Administrator
at least 45 days before the date it proposes for the amendment to
become effective, unless a shorter period is allowed by the Assistant
Administrator.
(ii) Within 30 days after receiving a proposed amendment, the
Assistant Administrator, in writing, either approves or denies the
request to amend.
(iii) An amendment to a foreign air carrier security program may be
approved if the Assistant Administrator determines that safety and the
public interest will allow it, and the proposed amendment provides the
level of security required under this part.
(iv) Within 45 days after receiving a denial, the foreign air
carrier may petition the Administrator to reconsider the denial.
(v) Upon receipt of a petition for reconsideration, the Assistant
Administrator either approves the request to amend or transmits the
petition, together with any pertinent information, to the Administrator
for reconsideration. The Administrator disposes of the petition within
30 days of receipt by either directing the Assistant Administrator to
approve the amendment, or affirms the denial.
(3) If the safety and the public interest require an amendment, the
Assistant Administrator may amend an accepted security program as
follows:
(i) The Assistant Administrator notifies the foreign air carrier,
in writing, of the proposed amendment, fixing a period of not less than
45 days within which the foreign air carrier may submit written
information, views, and arguments on the amendment.
(ii) After considering all relevant material, the Administrator
notifies the foreign air carrier of any amendment adopted or rescinds
the notice. The foreign air carrier may petition the Administrator to
reconsider the amendment, in which case the effective date of the
amendment is stayed until the Administrator reconsiders the matter.
(iii) Upon receipt of a petition for reconsideration, the Assistant
Administrator either amends or withdraws the notice or transmits the
petition, together with any pertinent information, to the Administrator
for reconsideration. The Administrator disposes of the petition within
30 days of receipt by either directing the Administrator to withdraw or
amend the amendment, or by affirming the amendment.
(4) If the Assistant Administrator finds that there is an emergency
requiring immediate action with respect to safety in air transportation
or in air commerce that makes procedures in this section contrary to
the public interest, the Assistant Administrator may issue an
amendment, effective without stay, on the date the foreign air carrier
receives notice of it. In such a case, the Assistant Administrator
shall incorporate in the notice a brief statement of the reasons and
findings for the amendment to be adopted. The foreign air carrier may
file a petition for reconsideration under paragraph (e)(2) of this
section; however, this does not stay the effectiveness of the emergency
amendment.
* * * * *
(j) The following apply to the screening of persons and property,
and the acceptance of cargo:
(1) Each foreign air carrier required to conduct screening under a
security program shall use the procedures included, and the facilities
and equipment described, in its screening company security program(s)
to inspect each person entering a sterile area, each person's
accessible property, and checked baggage and cargo as specified.
(2) Each foreign air carrier required to conduct screening under a
security program shall detect and prevent the carriage aboard aircraft
and introduction into a sterile area of any unauthorized explosive,
incendiary, or deadly or dangerous weapon on or about each person or
the person's accessible property.
(3) Each foreign air carrier required to conduct screening under a
security program shall use the procedures included and the facilities
and equipment described in its screening company security program(s) to
prevent the carriage of any unauthorized explosive, incendiary, or
deadly or dangerous weapon aboard a passenger aircraft.
(k) Except as provided in Sec. 111.109(k) of this chapter each
foreign air carrier required to conduct screening of persons and
property for locations within the United States under a
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security program shall either hold a screening company certificate
issued under part 111 of this chapter or shall use another screening
company certificated under part 111 of this chapter to inspect persons
or property for the presence of any unauthorized explosive, incendiary,
or deadly or dangerous weapon. FAA-certified canine teams are not
required to be operated by certificated screening companies.
(l) Each foreign air carrier shall ensure that each screening
company performing screening on its behalf conducts such screening in
accordance with part 111 of this chapter, the screening company's
security program, and the screening company's operations
specifications.
(m) Each foreign air carrier required to conduct screening under
this part shall provide oversight to each screening company performing
screening on its behalf as specified in the foreign air carrier's
security program.
(n) Each foreign air carrier required to conduct screening under a
security program shall:
(1) Maintain at least one complete copy of each of its screening
companies' security programs at its principal business office.
(2) Have available complete copies or the pertinent portions of its
screening companies' security programs or appropriate implementing
instructions at each location where the screening companies conduct
screening for the foreign air carrier.
(3) Make copies of its screening companies' security programs
available for inspection by an FAA special agent upon request.
(4) Restrict the distribution, disclosure, and availability of
information contained in its screening companies' security programs to
persons with a need to know as described in part 191 of this chapter.
(5) Refer requests for such information by other persons to the
Administrator.
(o) Each foreign air carrier required by the Administrator to
implement additional security measures to maintain system performance
shall notify the public by posting signs at affected locations as
specified in its security program.
(p) Each foreign air carrier shall monitor each screener training
test required under Sec. 111.215(a) and (c) of this chapter for all
screening companies that conduct screening on its behalf in accordance
with its security program. Each test monitor shall meet the following
qualifications:
(1) Be a foreign air carrier employee who is not a contractor,
instructor, screener, screener-in-charge, checkpoint security
supervisor, or other screening company supervisor, unless otherwise
authorized by the Administrator.
(2) Be familiar with the testing and grading procedures contained
in the screening company's security program.
(3) Meet other qualifications set forth in the screening company's
security program.
16. Amend Sec. 129.26 by removing paragraphs (a)(3) and (a)(4);
redesignating paragraph (a)(5) as new paragraph (a)(3) and revising it;
and adding a new paragraph (a)(4) to read as follows:
Sec. 129.26 Use of X-ray system.
(a) * * *
(3) The system meets the imaging requirements set forth in the
screening standard security program using the step wedge specified in
American Society for Testing and Materials Standard F792-82; and
(4) It ensures that each X-ray system that it uses has a
functioning threat image projection system installed on it that meets
the standards set forth in its security program unless otherwise
authorized by the Administrator.
(i) Automated X-ray threat image projection data will be collected
as specified in the model security program and in the responsible
screening company's security program.
(ii) The foreign air carrier shall make X-ray threat image
projection data available to the FAA upon request and shall allow the
FAA to download threat image projection data upon request.
* * * * *
17. Add a new Sec. 129.28 to read as follows:
Sec. 129.28 Use of explosives detection systems.
(a) When the Administrator shall require by an amendment under
Sec. 129.25(e), each foreign air carrier required to conduct screening
under a security program shall use an explosives detection system that
has been approved by the Administrator to screen checked baggage on
each international flight in accordance with its security program and
its screening company security programs.
(b) Unless otherwise authorized by the Administrator, each foreign
air carrier shall ensure that each explosives detection system that it
uses has a functioning threat image projection system that meets the
standards set forth in its security program.
(1) Automated explosives detection system threat image projection
data will be collected as specified in the foreign air carrier's
security program and in the responsible screening company's security
program.
(2) The foreign air carrier shall make explosives detection system
threat image projection data available to the FAA upon request and
shall allow the FAA to download threat image projection data upon
request.
PART 191--PROTECTION OF SENSITIVE SECURITY INFORMATION
18. The authority citation for part 191 continues to read as
follows:
Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702,
44705-44706, 44901-44907, 44913-44914, 44932, 44935-44936, 46105.
19. Revise Sec. 191.1(c) to read as follows:
Sec. 191.1 Applicability and definitions.
* * * * *
(c) The authority of the Administrator under this part also is
exercised by the Assistant Administrator for Civil Aviation Security
and the Deputy Assistant Administrator for Civil Aviation Security and
any other individual formally designated to act in their capacity. For
matters involving the release or withholding of information and records
containing information described in Sec. 191.7(a) through (g), related
documents described in Sec. 191.7(l), and Sec. 191.7(m), the authority
may be further delegated. For matters involving the release or
withholding of information and records containing information described
in Sec. 191.7(h) through (k) and related documents described in
Sec. 191.7(l), the authority may not be further delegated.
20. Revise Sec. 191.5 to read as follows:
Sec. 191.5 Records and information protected by others.
(a) Each airport operator, air carrier, indirect air carrier,
foreign air carrier, and certificated screening company, and each
person receiving information under Sec. 191.3(b), and each individual
employed by, contracted to, or acting for an airport operator, air
carrier, indirect air carrier, foreign air carrier, certificated
screening company, or person receiving information under Sec. 191.3(b)
shall restrict disclosure of and access to sensitive security
information described in Sec. 191.7(a) through (g), (j), (k), (m), and,
as applicable, Sec. 191.7(l) to persons with a need to know and shall
refer requests by other persons for such information to the
Administrator.
(b) A person has a need to know sensitive security information when
the information is necessary to carry out FAA-approved or directed
aviation security duties; when the person is in
[[Page 611]]
training for such a position; when the information is necessary to
supervise or otherwise manage the individuals carrying out such duties;
to advise the airport operator, air carrier, indirect air carrier,
foreign air carrier, or certificated screening company regarding the
specific requirements of any FAA security-related requirements; or to
represent the airport operator, air carrier, indirect air carrier,
foreign air carrier, certificated screening company, or person
receiving information under Sec. 191.3(d) in connection with any
judicial or administrative proceeding regarding those requirements. For
some specific information, the Administrator may make a finding that
only specific persons or classes of persons have a need to know.
(c) When sensitive security information is released to unauthorized
persons, any air carrier, airport operator, indirect air carrier,
foreign air carrier, certificated screening company, or individual with
knowledge of the release shall inform the Administrator.
(d) Violation of this section is grounds for a civil penalty and
other enforcement or corrective action by the FAA.
(e) Wherever this part refers to an air carrier, airport operator,
indirect air carrier, foreign air carrier, or certificated screening
company, those terms also include applicants for such authority.
(f) An individual who is in training for a position is considered
to be employed by, contracted to, or acting for an airport operator,
air carrier, indirect air carrier, foreign air carrier, certificated
screening company, or person receiving information under Sec. 191.3(b).
21. Amend Sec. 191.7 by revising the introductory text; by revising
paragraphs (a) and (h); and by adding new paragraphs (m) and (n) to
read as follows:
Sec. 191.7 Sensitive security information.
Except as otherwise provided in writing by the Administrator, the
following information and records containing such information
constitute sensitive security information:
(a) Any approved or standard security program for an air carrier,
foreign air carrier, indirect air carrier, airport operator, or
certificated screening company and any security program that relates to
U.S. mail to be transported by air (including that of the United States
Postal Service and of the Department of Defense); and any comments,
instructions, or implementing guidance pertaining thereto.
* * * * *
(h) Any information that the Administrator has determined may
reveal a systemic vulnerability of the aviation system or a
vulnerability of aviation facilities to attack. This includes but is
not limited to details of inspections, investigations, and alleged
violations and findings of violations of part 107, 108, 109, or 111 of
this chapter or Sec. 129.25, 129.26, or 129.27 of this chapter and any
information that could lead to the disclosure of such details, as
follows:
(1) For an event that occurred less than 12 months before the date
of the release of the information, the following are not released: the
name of an airport where a violation occurred, the regional identifier
in the case number, a description of the violation, the regulation
allegedly violated, and the identity of the air carrier in connection
with specific locations or specific security procedures. The FAA may
release summaries of an air carrier's or certificated screening
company's total security violations in a specified time range without
identifying specific violations. Summaries may include total
enforcement actions, total proposed civil penalty amounts, total
assessed civil penalty amounts, numbers of cases opened, numbers of
cases referred by Civil Aviation Security to FAA counsel for legal
enforcement action, and numbers of cases closed.
(2) For an event that occurred 12 months or more before the date of
the release of the information, the following are not released: the
specific gate or other location on an airport where the event occurred.
The FAA may release the following: the number of the enforcement
investigative report; the date of the alleged violation; the name of
the air carrier, airport, and/or certificated screening company; the
regulation allegedly violated; the proposed enforcement action; the
final enforcement action; and the status (open, pending, or closed).
(3) The identity of the FAA special agent who conducted the
investigation or inspection.
(4) Security information or data developed during FAA evaluations
of the air carriers, airports, indirect air carriers, and certificated
screening companies and the implementation of the security programs,
including air carrier, airport, and indirect air carrier inspections
and screening location tests or methods for evaluating such tests.
* * * * *
(m) Any approved operations specifications for a screening company
except the following items, which are not sensitive security
information: the name of the company, locations at which the
Administrator has authorized the company to conduct business, the type
of screening that the Administrator has authorized the company to
perform, and the title and name of the person required by
Sec. 111.209(b) of this chapter.
(n) Any screener test used under part 111 of this chapter.
Issued in Washington, DC, on December 15, 1999.
Quinten Johnson,
Acting Director, Office of Civil Aviation Security Policy and Planning.
[FR Doc. 00-16 Filed 1-4-00; 8:45 am]
BILLING CODE 4910-13-U