[Federal Register Volume 66, Number 137 (Tuesday, July 17, 2001)]
[Rules and Regulations]
[Pages 37330-37368]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16995]



[[Page 37329]]

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Part III





Department of Transportation





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Federal Aviation Administration



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14 CFR Part 108



Aircraft Operator Security; Final Rule

  Federal Register / Vol. 66, No. 137 / Tuesday, July 17, 2001 / Rules 
and Regulations  

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 108

[Docket No. FAA-2001-8725; Formerly Docket No. 28978; Amendment No. 
108-18  ]
RIN 2120-AD45


Aircraft Operator Security

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This final rule amends the existing airplane operator security 
rule. It revises the applicability section, definitions, and terms; 
reorganizes this part into subparts containing related requirements; 
and incorporates some requirements already implemented in the air 
carrier standard security program. Specifically, this final rule 
increases the number of aircraft operators that must have security 
programs, to include all that enplane from or deplane into a sterile 
area and certain helicopter operators. This final rule expands the 
training requirements for aircraft operator security personnel. 
Further, this final rule clarifies the procedures for carriage of 
prisoners under the control of armed law enforcement officers, 
procedures for carriage of weapons by law enforcement officers, and 
procedures for aircraft operators to comment on security directives 
issued by the FAA. This rule requires aircraft operators to participate 
in the airport sponsored contingency exercise or its equivalent. As 
part 108 applies to operators of rotorcraft as well as fixed-wing 
aircraft, this final rule changes the title of this part from 
``Airplane Operator Security'' to ``Aircraft Operator Security.'' This 
final rule contains changes that are intended to enhance security for 
the traveling public, and aircraft operators.

EFFECTIVE DATE: This rule is effective November 14, 2001. The 
incorporation by reference of certain publications in this rule is 
approved by the Director of the Federal Register as of November 14, 
2001.

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

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to the search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/search).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through 
FAA's web page at http://www.faa.gov/avr/armhome.htm or the Federal 
Register's web page at http://www.access.gpo.gov/su_docs/aces/aces140.html.
    You can also get a copy 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. Make 
sure to identify the amendment number or docket number of this final 
rule.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FAA to comply with small entity requests for information 
or advice about compliance with statutes and regulations within its 
jurisdiction. Therefore, any small entity that has a question regarding 
this document may contact their local FAA official, or the person 
listed under FOR FURTHER INFORMATION CONTACT. You can find out more 
about SBREFA on the Internet at our site, http://www.faa.gov/avr/arm/sbrefa.htm. For more information on SBREFA, e-mail us [email protected].

Background

    This final rule updates the overall regulatory structure for 
aircraft operator security. It is issued in conjunction with a 
companion rule revising 14 CFR part 107, Airport Security, published in 
today's issue of the Federal Register. This final rule is the result of 
a multi-year effort involving the FAA, airports and aircraft operators, 
and the Aviation Security Advisory Committee (ASAC). ASAC is a federal 
advisory committee sanctioned to develop recommendations for 
improvement of methods, equipment, and procedures to improve civil 
aviation security. The FAA invited ASAC to comment on the underlying 
issues, and potential solutions associated with the revision of part 
108.
    Several measures contained in this final rule have been previously 
implemented via amendments to the air carrier standard security 
program. These revisions are considered to be consistent with several 
of the recommendations of the White House Commission on Aviation Safety 
and Security and with the security mandates of the Federal Aviation 
Reauthorization Act of 1996 (Pub. L. 104-264) signed on October 9, 
1996.

Terrorism

    The terrorist threat level in the United States over the next 
decade will remain at least as high as it is at present and, indeed, 
will probably rise. This judgement is based on consideration of a 
number of factors.
    First, there are numerous unresolved conflicts across the globe, 
many of which show no sign of early resolution. While many of these do 
not involve the United States directly, the status of the United States 
as sole superpower means that parties to the conflict are prone to 
decry either US involvement or lack of involvement.
    Second, since the United States is variously perceived as a 
supporter of unpopular regimes, an enemy of Islam, and an exponent of 
imperialism (whether political, economic, or cultural), any number of 
terrorist groups view the United States interests as fundamentally 
inimical to their own, and thus see attacks against US interests as 
justifiable, even meritorious.
    Third, the expanding geographical range of terrorist activity is 
increasingly evident. Members of foreign terrorist groups, 
representatives from state sponsors of terrorism, and radical 
fundamentalist elements are present in the United States. The 
activities of some of these individuals and groups go beyond fund-
raising to recruiting other persons (both foreign and US citizens) for 
terrorist-related activities that may include obtaining and training 
with weapons, providing safehaven for fugitives, and making bombs. A 
few foreign terrorist groups have supporters inside the United States 
who could be used to support terrorism.
    Fourth, the vulnerabilities of the critical national infrastructure 
of the United States may prove inviting to foreign and domestic 
terrorists wishing to inflict damage on the US economy.
    Fifth, although it remains to be seen what lessons terrorists will 
draw from the World Trade Center bombing in 1993 and the Oklahoma City 
bombing in 1995, a particularly worrisome development is the increasing

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willingness on the part of various terrorists to carry out attacks 
intended to bring about indiscriminate casualties.
    Finally, the phenomenon of ad hoc or non-traditional terrorists 
groups (such as the group responsible for the World Trade Center 
bombing) has become a primary concern to law enforcement. Difficulties 
exist in denying entry of such individuals (who are not members of any 
known terrorist group) into the United States, recognizing or 
identifying them as terrorists once they are here, or anticipating the 
timing or targets of their attacks.
    With respect specifically to the threat to civil aviation in the 
United States, it must be seen in the context of the broader threat. 
The events in Asia in early 1995, showed that the terrorists persisted 
in planning to attack aviation even when there were other targets 
identifiable with the United States in the area and even when they knew 
that the security measures protecting aviation had been strengthened. 
Publicity about problems with US domestic civil aviation security 
measures increases the potential for attacks here. Civil aviation 
targets may be chosen by terrorists even if alternative, and (in their 
view) softer targets are available, especially since an attack on 
aviation seizes the public's imagination to a degree equaled by few 
other types of attack.

General Discussion of the Rule

    On August 1, 1997 (62 FR 41730), the FAA published Notice 97-12 to 
revise part 108. Notice 97-12 proposed and requested comments by 
December 1, 1997.
    Concurrent with the issuance of Notice 97-12, the FAA issued Notice 
97-13 to revise part 107 on Airport Security (62 FR 41760; August 1, 
1997), and held two public meetings. The first public meeting was held 
in Washington, DC on October 15, 1997, and the second was held on 
October 22, 1997, in Fort Worth, Texas.
    On April 21, 1998, the FAA reopened the comment period and 
announced two public meetings on Notice 97-13 and Notice 97-12 (63 FR 
19691, April 21, 1998). The public meetings were held on May 21, 1998, 
in Washington, DC, and on June 4, 1998, in Nashville, TN.
    As of June 26, 1998, the closing of the second comment period, 160 
comments were received addressing Notice 97-12. A majority of the 
comments were from law enforcement officers addressing the carriage of 
firearms onboard the aircraft. Comments were also received from 
specific aircraft operators, local airports, Transport Canada, State 
departments of transportation (DOT's), American Association of Airport 
Executives (AAAE), Airport Council International--North America (ACI-
NA), Allied Pilots Association (APA), Air Transport Association (ATA), 
National Air Carrier Association (NACA), Regional Airline Association 
(RAA), Cargo Airline Association (CAA), Air Line Pilots Association 
(ALPA), and Helicopter Association International (HAI). The comments 
mostly address clarification of terms, carriage of weapons onboard the 
aircraft by law enforcement officers, transporting passengers under 
armed escort, and security operations. Generally, commenters suggest 
that the cost estimates to develop a security program were 
underestimated, however, no cost estimates were provided. A detailed 
discussion of the comments appears under ``Section by Section 
Analysis.''
    On Tuesday, August 10, 1999, the FAA reopened the comment period to 
allow the public to submit additional comments on the compliance 
program proposed in Notice 97-12 (Sec. 108.103(b)(11) and (c)(6), 64 FR 
43322). After considering all the written comments on the compliance 
program issue, the FAA will consider the need for amending part 108.
    The revision of part 108 comprehensively updates the aircraft 
operator security regulations to more efficiently and effectively 
address terrorist and other criminal threats to civil aviation. This 
action incorporates both procedures currently in the air carrier 
standard security program and new security procedures, in a manner that 
is intended to allow regulated entities and individuals to understand 
their responsibilities more readily. Lastly, the revision incorporates 
certain new measures that provide for security enhancements.
    Airport security programs required by part 107 also have been 
amended extensively since 1985. The FAA is revising part 107, which 
governs airport security, concurrently with this part. All references 
to part 107 in this preamble are intended to refer to part 107 as 
published in today's issue of the Federal Register.
    The revisions of part 108 and part 107 represent a comprehensive 
approach toward upgrading the security requirements of the civil 
aviation system. The intent of these revisions is to foster consistency 
and standardization throughout the national civil aviation security 
program. Where possible, the revisions of parts 107 and 108 contain 
nearly identical language to enhance, clarify, or require new security 
measures for implementation by both aircraft and airport operators.
    Significant changes between the final rule include the following: 
(1) Increases the number of aircraft operators who must have security 
programs; (2) Moves some sections from current 14 CFR part 107; (3) 
Clarifies procedures allowing law enforcement officers to fly armed; 
(4) Clarifies procedures for transporting prisoners under armed escort; 
(5) Holds individuals accountable for certain violations; (6) 
Acknowledges administrative procedures for a formal comment period for 
security directives.
    The changes are discussed in more detail in the Section-by-Section 
Analysis below.

Section-by-Section Analysis

Title and Organization of Revised Part 108

    In this final rule, the FAA revises existing Sec. 108.1 through 
Sec. 108.33, and adds several new sections. Also, the FAA reorganized 
some of the material in Notice 97-12 resulting in additional sections 
addressing specific requirements. These changes are discussed in more 
detail below. The title ``Airplane Operator Security'' has been changed 
to ``Aircraft Operator Security,'' as this part applies to operators of 
rotorcraft as well as fixed-wing aircraft. All references to 
``airplane'' in this part are changed to ``aircraft.''

Subpart A--General

Section 108.1  Applicability

    Proposal: The FAA proposed, in Sec. 108.1(a)(1), to extend the 
application of part 108 to certain private charter operations, 
helicopter operations, and all-cargo carriers.
    Comments: The FAA received comments identified as applicable to 
Sec. 108.1, the comments appear to be directed toward the content of 
security programs. Accordingly, the FAA has chosen to place those 
comments and the FAA's response to them in the analysis section for 
Sec. 108.101.
    The ASAC Part 108 Working Group supports permitting helicopter 
operators to voluntarily participate in a security program. The Part 
108 Working Group notes that some helicopter activities place operators 
in direct contact with large domestic flag carrier operations. When 
this occurs, helicopter passengers disembark into the secure areas of 
terminals. The recommendation by the Part 108 Working Group is to allow 
the expeditious handling of such passengers through secure areas 
without diminishing the security of the sterile area. In order to do 
so, the helicopter operators would require an FAA-approved security 
program.

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    FAA response: The FAA continues to believe that this action will 
enhance the security of the sterile area by minimizing the opportunity 
for transfer or introduction of dangerous or deadly weapons into the 
sterile area by unscreened persons disembarking from private charter or 
helicopter operations into the sterile area.
    The FAA concurs with the opinion of the Part 108 Working Group. All 
aircraft operators that enter the secured areas, enplane from or 
deplane into a sterile area, or use screening checkpoints, impact the 
security of all operations, and should have written and approved 
security programs.
    Accordingly, the final rule will extend the applicability of 
Sec. 108.1 to private charter operations and, under certain specified 
conditions, will require helicopter operations to adopt and implement a 
security program.

Section 108.3  Definitions

    Proposal: In Notice 97-12, the FAA proposed to add commonly used 
terms and to update current terms used in part 108. The FAA also 
proposed to make the definitions in proposed part 107 apply to part 108 
as well.
    The FAA proposed to add the following definitions: ``accepted 
security program,'' ``approved security program,'' ``Assistant 
Administrator,'' and ``principal security inspector.'' The FAA proposed 
to revise the following definitions: ``passenger-seating 
configuration,'' ``private charter,'' ``public charter,'' ``scheduled 
passenger operations,'' and ``sterile area.''
    Comments: Alaska Airlines (AS), American Airlines (AA), United 
Parcel Service Airline (UPS), Cargo Airline Association (CAA), Air 
Transport Association of America (ATA), Regional Airline Association 
(RAA), and the National Air Carrier Association (NACA) recommend that 
terms applicable to airport or aircraft operating areas should be 
defined in both parts 108 and 107, instead of only being in part 107. 
In addition, AS, AA, Northwest Airlines (NW), Federal Express (FedEx), 
RAA, CAA, UPS, and ATA are in strong opposition to the replacement of 
several terms as proposed in part 107. All of the organizations 
indicated above recommend retention of the current terms for secured 
area and SIDA, since they are understood and used daily by regulated 
parties and the FAA.
    The FAA also received several comments offering definitions for 
``public charter,'' ``private charter,'' and ``person.''
    FAA response: The FAA has decided to keep the definitions in the 
most applicable part, with cross references showing that the terms 
apply to other parts as well. Although it would be convenient for users 
to have definitions repeated in each part, there is a risk that the 
definitions would become inconsistent over time, as each part is 
amended from time to time. Further, it is the FAA's experience that 
aircraft operators generally provide written guidance to their 
personnel, not simply copies of part 108. Operators can easily include 
in their guidance pertinent portions of part 107, as well as parts 1, 
109, 129, and 191 as needed.
    The FAA's decision regarding definitions as applied to the airport 
environment are contained in the final rule for part 107.
    In this final rule, the FAA has made several editorial changes to 
the definitions. The definitions for ``accepted security program'' and 
``approved security program'' have been removed and replaced with a 
single term, ``aircraft operator security program.'' For the purposes 
of this final rule, the definition of ``accepted security programs'' 
will be unnecessary because the references to part 129 have been 
removed. The only security programs which will be discussed in this 
final rule are those that have been approved by the Administrator under 
part 108.
    In the current part 108, the term ``Director of Civil Aviation 
Security'' is used to refer to the official who oversees civil aviation 
security operations and approves air carrier security programs. Under 
the internal FAA reorganization, the current title of this position is 
``Associate Administrator for Civil Aviation Security;'' however, the 
statute refers to the ``Assistant Administrator for Civil Aviation 
Security.'' As such, paragraph (b) of this section will use the title 
``Assistant Administrator for Civil Aviation Security.'' In addition, 
paragraph (b) will clarify that the Deputy Assistant Administrator for 
Civil Aviation Security, or any individual formally designated as 
Acting Assistant Administrator or Acting Deputy Administrator, could 
act in the capacity of the Assistant Administrator. In addition, the 
duties of the Assistant Administrator could be further delegated.
    With regard to the proposed term ``principal security inspector,'' 
it has been determined that it would be best to use the general term 
``Administrator'' rather than to name specific positions held by 
various employees working on behalf of the Administrator. As a result 
of that decision, the term ``principal security inspector'' has been 
removed.
    The FAA considered the definitions offered by the commenters for 
``public charter'' and ``rivate charter'' and determined that they did 
not meet FAA security needs. The FAA has determined the need to retain 
the proposed definitions for ``public charter'' and ``private 
charter,'' but is correcting an editorial mistake in the NPRM that gave 
the definition for ``public charter'' as the definition for the term 
``private charter.'' The definitions in part 108 are based on the 
different security issues present when all passengers are affiliated 
(private charters) and when passengers may have little or no 
affiliation with each other (public charter). The definitions suggested 
by the commenters are based more on economic concerns.
    Although commenters offered other definitions for the term 
``person,'' the definition for ``person'' is contained in 14 CFR part 
1, and applies to all FAA regulations. The term as used in this part is 
in concert with that definition and as such, this final rule will not 
introduce a new definition for the term ``person.''
    The term ``scheduled passenger operations'' has been rewritten for 
clarity with no change from the intent of the current regulation.
    Notice 97-12 proposed to define ``sterile area'' as ``a portion of 
an airport defined in the airport security program to which access 
generally is controlled by either the inspection of persons and 
property in accordance with an approved or accepted security program 
required under Sec. 108.105 of this part or Sec. 129.25 of this 
chapter, or an access control system meeting the requirements of 
Sec. 107.207 of this chapter.''
    The final rule simplifies this definition, by describing the 
function of the sterile area. It is defined as ``a portion of an 
airport defined in the airport security program that provides 
passengers access to boarding aircraft and to which access generally is 
controlled by an aircraft operator or foreign air carrier through the 
screening of persons and property in accordance with a security 
program.'' The reason the sterile area is needed, is to provide access 
to aircraft by passengers. Its use permits the screening of passengers 
well before the boarding of the aircraft, both in time and distance, so 
that screening can be accomplished more efficiently. In most cases, 
persons other than passengers may enter the sterile area, but sometimes 
such access is limited for security or crowd control purposes. The 
means by which access is controlled is not part of the definition, but 
is set out in Sec. 108.201 and the security program.
    The current rule refers to ``certificate holders.'' Notice 97-12 
proposed to

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change this term to ``air carriers,'' because there are many different 
kinds of certificate holders under FAA regulations, including airport 
operators (part 139). After further consideration, the term ``air 
carrier'' in part 108 is being changed to ``aircraft operator.'' There 
are some aircraft operators that will be required to hold security 
programs under part 108 that do not hold ``air carrier operating 
certificates,'' rather they hold ``operating certificates'' under part 
119. For instance, those operators engaging in intrastate air 
transportation are not considered part of the air transportation 
industry, and are not required to hold air carrier operating 
certificates under part 119. However, they are required to screen their 
passengers in accordance with 49 U.S.C. 44901, and are required to hold 
a certificate under part 119.
    In addition, some private charter operations may be conducted by 
those operators holding operating certificates, not air carrier 
operating certificates. Section 108.101 will require them to adopt a 
security program if they use a sterile area to enplane or deplane 
passengers, in order to protect the integrity of the sterile area.
    Accordingly, ``aircraft operator'' is defined in Sec. 108.3 as ``a 
holder of an air carrier operating certificate or an operating 
certificate under part 119 of this chapter that conducts operations 
described in Sec. 108.101.'' This definition makes it clear that 
general aviation operators are not under part 108.
    Two definitions that were not included in the NPRM, but will be 
added to the final rule are ``checked baggage'' and ``cargo.'' These 
terms will be added to help the reader understand two amended sections, 
which are numbered and entitled Sec. 108.203, ``Acceptance and 
screening of checked baggage,'' and Sec. 108.205, ``Acceptance and 
screening of cargo.'' The current rule also provides that one kind of 
private charter involves ``civil or military air movements.'' In Notice 
97-12, this distinction was proposed to be termed ``civil or military 
air transportation.'' This final rule will use the term ``air 
movements.'' Air transportation has a particular meaning in the 
statute, and involves holding out to the public. Private charters may 
not involve holding out to the public and, therefore, to avoid 
confusion, the term will remain ``air movement.''
    Further, Notices 97-12 and 97-13 proposed the use of the terms 
``explosive, incendiary, deadly or dangerous weapon, or destructive 
substance'' in describing what items may not be permitted in sterile 
areas or onboard aircraft (see e.g., proposed Secs. 107.101 and 
108.201(b)). Some commenters request clarification of these terms, and 
question the meaning of the term ``destructive substance.'' They state 
that the term could be read as including various hazardous materials 
that are subject to extensive regulation under the Hazardous Materials 
Regulations (HMR), 49 CFR part 172, and that the terms ``explosive'' 
and ``incendiary'' are sufficient.
    The FAA has decided not to use the term ``destructive substance'' 
as proposed. The term ``destructive substance'' is used in the statute, 
49 USC 44902, however, the FAA believes the term is confusing and that 
its use would not add any benefits to this final rule. Aircraft 
operators will not be responsible for searching for substances other 
than by the means set forth in their security program, or any security 
directives that may be issued.

Section 108.5  Inspection Authority

    Proposal: Notice 97-12 proposed to add a section on the inspection 
authority of the FAA. The authority of the Administrator to inspect for 
compliance with statutory and regulatory requirements is granted in 49 
U.S.C. 40113. Proposed Sec. 108.5(a) stated that the air carrier must 
allow the FAA to make inspections at any time or place to determine 
compliance with this rule, the statute, and the air carrier security 
program. This paragraph was largely based on Sec. 119.59, which 
provides that the FAA may inspect air carriers and commercial operators 
for compliance with safety rules.
    Proposed Sec. 108.5(b) included the requirement found in current 
Sec. 108.27 that on the request of the FAA, the air carrier must 
provide evidence of compliance with the rules and with its own security 
program. Proposed Sec. 108.5(c) would have required air carriers to 
issue to any FAA Special Agent access and identification media to 
permit unescorted access to, and movement within, any exclusive area 
for which the air carrier has taken responsibility.
    Comments: American Airlines, FedEx, UPS, and ATA believe the scope 
of proposed Sec. 108.5(a) and (c) is too broad and could subject air 
carriers to unreasonable and frequent intrusions by FAA personnel, that 
off-airport inspections such as at corporate headquarters should not be 
permitted, and that unannounced inspections could result in unnecessary 
disruption. American Airlines states that the FAA should provide 
written notice of inspections so that management can observe and take 
immediate corrective action if needed. Continental Airlines (CO) states 
that the section should refer to inspections ``at any reasonable time 
or place.'' It notes that some inspections would be at corporate 
headquarters, which are closed during some hours. Northwest Airlines 
(NW) requests that the rule be modified to ensure air carriers are 
protected from unreasonable intrusion into their private corporate 
areas of business. Alaska Airlines states that not all FAA Special 
Agents are trained in dangerous goods, cargo security, and passenger 
security. Alaska Airlines also notes that the proposal did not address 
the timeframe of issuing the media. Alaska Airlines asks whether the 
special agents would have safety training in ramp safety. United 
Express states that the inspections should be performed only by FAA 
personnel trained to perform such inspections. Trans World Airlines 
states that there should be limitations to ensure air carrier 
operations are not unnecessarily interrupted. The RAA states that the 
proposal is written too broadly and should apply only to FAA inspectors 
trained in security inspections and states that non-security related 
surveillance should not be included in the security regulations.
    FAA response: This section is intended to accomplish several 
important tasks. Paragraphs (a), (b), and (c) will provide information 
about the FAA's authority, which has existed since 1928, to conduct 
inspections and tests. Paragraphs (a) and (b) also will set forth 
affirmative duties on the aircraft operator to cooperate with and allow 
the inspections and tests, and its failure to do so could result in 
enforcement action against the aircraft operator. Paragraph (d) will 
require the aircraft operator to issue access and identification media 
to FAA special agents, which will assist them in carrying out their 
inspection duties.
    The FAA agrees with the commenters that the FAA is required to 
conduct its investigations and tests in a reasonable manner, but does 
not believe that the words ``reasonable'' should be added to the 
regulation. The wording is similar to that used in a number of other 
FAA rules that have existed for years, including Sec. 119.59 (aircraft 
operators and commercial operators), Sec. 141.21 (pilot schools), 
Sec. 145.23 (repair stations), and Sec. 147.43 (aviation maintenance 
technician schools). The wording of these rules has not caused 
significant problems in the past. The FAA does not anticipate any 
change in its inspection procedures based on this new rule.
    This new section will provide a basis for enforcement action in the 
event that an aircraft operator fails to allow the Administrator to 
conduct inspections

[[Page 37334]]

and tests as required under this section. While the Administrator has 
always had authority to conduct inspections and tests, there were not 
many options that the Administrator could take if the aircraft operator 
obstructed the inspection. This rule allows the FAA to take 
administrative action or civil penalty action if the aircraft operator 
fails to allow the inspection or test, or otherwise does not comply 
with the section.
    As to the location of inspections, the FAA must be able to inspect 
each location at which regulated activity is being carried out. 
Regulated activity under part 108 is conducted primarily at airports, 
but there are other locations that the FAA must inspect. For example, 
off-airport baggage check-in locations such as hotels or cruise ships 
are subject to FAA inspection. In addition, some aircraft operators 
maintain required records of employment history, verification, and 
criminal history records checks (Sec. 108.229) at their corporate 
offices. These required records are periodically inspected by FAA 
Special Agents. It is FAA practice to make arrangements for a records 
review ahead of time, and to schedule the inspection for normal 
business hours, to ensure that aircraft operator personnel are 
available to assist and that the inspection does not cause undue 
disruption.
    As to the timing of inspections, the FAA is aware of the need not 
to unduly interfere with operations. Often inspections are announced 
ahead of time to ensure that aircraft operator personnel are available 
to observe and assist. However, many inspections and tests can only be 
done effectively if unannounced, to determine whether the aircraft 
operator is in compliance when it does not know the FAA may be 
inspecting. Further, the FAA must sometimes inspect and test during 
peak traffic periods at the airport to ensure that even during the 
busiest times aircraft operators are in compliance with the security 
requirements. These peak periods are when the largest portion of the 
traveling public is being protected by the security procedures.
    Regarding FAA personnel, the FAA takes care to only authorize 
trained personnel to conduct inspections. These individuals receive 
training (both classroom and on-the-job) on ramp safety and procedures, 
in addition to the training they receive on technical security 
requirements.
    Several changes have been made in the final rule. Proposed 
Sec. 108.5(a) referred to determining the compliance of the airport 
operator, aircraft operator, foreign air carrier operator, and other 
airport tenants. The final rule also will list the compliance of 
indirect air carriers, which must have security programs under part 
109. Indirect air carriers have important security responsibilities, 
and the FAA must be able to inspect and test for their compliance. An 
inspection of an aircraft operator's cargo facility, for instance, 
reveals information about the compliance of both the aircraft operator 
being inspected and any indirect air carrier that has transferred cargo 
to that aircraft operator.
    Section 108.5 only provides for inspection by the FAA. Unlike the 
Notice, it does not refer to inspection by other Federal government 
entities. The FAA has no authority to grant or to deny inspection 
authority to another agency. The section was changed to avoid any 
appearance that the FAA was purporting to grant such authority.
    Proposed Sec. 108.5(a)(1) and (2) referred to determining 
compliance with the aircraft operator security program and with part 
108. The final rule in Sec. 108.5(a)(1) also lists compliance with 
parts 107 (airport operators), 109 (indirect air carriers), 129 
(foreign air carrier operations), and 191 (sensitive security 
information), and any security programs under those parts. In any given 
area of an airport, there may be duties which aircraft operators, 
airport operators, and the others must carry out. If a Special Agent is 
in an aircraft operator's exclusive area, for instance, he/she might 
also be inspecting access doors that are controlled, in whole or part, 
by the airport operator. This section will clarify that the Special 
Agent may be inspecting for compliance with one or all of these parts 
or security programs.
    New Sec. 108.5(a)(2) refers to 49 U.S.C. Subtitle VII. That 
subtitle, Aviation Programs, contains much of the enabling legislation 
for the FAA. Most of these provisions were in the Federal Aviation Act 
of 1958, as amended (49 U.S.C. appx. 1301 et al.), before that Act was 
recodified in 1994.
    Proposed Sec. 108.5(a)(3) referred to determining compliance with 
49 CFR part 172, which provides requirements under the Hazardous 
Materials Transportation Act. This reference has been removed from the 
final rule. The FAA will continue to have authority to inspect for 
compliance with Hazardous Materials Regulations, but its authority is 
based on a different statute than that for civil aviation security. 
Part 108 is devoted to civil aviation security issues. To avoid 
misunderstanding, reference to hazardous materials inspections will be 
deleted.
    Proposed Sec. 108.5(a) referred to the Administrator making 
inspections and tests, and Sec. 108.5(b) referred to the aircraft 
operator providing evidence of compliance to the Administrator. The 
final rule will add the clarification that these requirements include 
the FAA making copies of records or the aircraft operator providing 
copies. Obtaining copies of records is an inherent part of the FAA 
inspecting compliance with safety and security requirements. It is 
necessary to preserve the records for further review by the FAA, and on 
occasion, use as evidence. This situation is true for all FAA 
inspections, including those conducted by FAA Aviation Safety 
Inspectors (who look at compliance with operational and airworthiness 
rules) and FAA Special Agents. Often, the copying is done at the 
aircraft operator's or airport operator's office with their permission. 
Sometimes other arrangements are made, such as the FAA temporarily 
removing the records to copy them at a FAA office or a commercial 
service. The FAA has rarely encountered difficulty on this point, but 
includes these explicit statements in the final rule to avoid 
misunderstandings in the future.
    This section refers to copying of records, not just documents. 
Records may be kept in a number of formats, such as paper, microfilm, 
and electronic. The FAA Special Agent may request copies of records in 
any of these formats, usually requesting that paper copies be made of 
the records. If another format is used more easily by the Special 
Agent, he/she may request records in that format.
    New Sec. 108.5(c) will state that FAA personnel may gain access to 
the SIDA and other controlled areas without holding access or 
identification media issued by the airport or aircraft operator, when 
it is necessary to conduct an inspection or investigation. This 
authority is not new. The FAA agrees that in most circumstances, FAA 
personnel should comply with the access and identification requirements 
in place at the airport, and it has been FAA practice to require that, 
when practicable, FAA personnel first obtain local media before 
conducting inspections. However, there are times when the FAA cannot 
adequately inspect and test compliance if its employees first obtain 
access and ID media from the airport or aircraft operator. The act of 
obtaining such media may provide an opportunity for the FAA 
representative to be recognized by personnel at the airport, thereby 
reducing or negating the value of the inspection. The FAA has in the 
past, and will continue, to make

[[Page 37335]]

unannounced, anonymous tests by entering the SIDA or other areas 
without first having obtained such media. Such tests are conducted 
under very controlled conditions, using personnel who are trained in 
safety and security. The FAA's Special Agents carry their FAA 
credentials for immediate display if they are challenged in order to 
establish their authority to conduct such inspections. FAA Special 
Agents only inspect without local ID's when obtaining local media 
before the inspection would greatly reduce, or even negate, the purpose 
of the inspection. In other circumstances, the FAA representatives have 
the appropriate access and/or ID media.
    Notice 97-12 proposed in Sec. 108.5(c) (Sec. 108.5(d) in the final 
rule) to require aircraft operators to issue identification and access 
media to FAA Special Agents upon their request and when they present 
FAA credentials issued by the Administrator. These media give Special 
Agents unescorted access to, and movement within, exclusive areas 
controlled by the aircraft operator. These exclusive areas may include 
portions of the airport secured area, SIDA, and AOA. While the FAA has 
the authority to inspect without local media, the FAA agrees that it is 
in the interest of security for all persons in the controlled areas to 
have locally issued or approved access and identification media. An 
undue number of different media makes the challenge system more 
difficult to carry out, and reduces the effectiveness of the challenge 
system. Therefore, the FAA's practice is for its agents to obtain local 
media when practicable. While the FAA rarely has had difficulty with 
the local authorities, there have been times when local authorities 
have resisted providing the media. This paragraph makes it clear that 
the aircraft operator is obligated to issue such media.
    The FAA recognizes and concurs with the concerns that the number of 
people given unescorted access to the secured areas, SIDA's, and AOA's 
should be limited to those with a need to be there. For this reason, 
this particular provision is limited to FAA Special Agents. Other 
persons with inspection authority for other FAA programs may obtain 
limited access to perform their duties. Flight Standards Inspectors, 
for instance, may use their FAA Form 8000-39 to enable them to go to 
the aircraft that they intend to inspect or on which they intend to 
give a flight check. This authority is not the kind that Special Agents 
need to fully inspect secured areas, AOA's, and SIDA's. Therefore, this 
paragraph requires the aircraft operator only to give identification 
and access media to those individuals identified by the Administrator's 
Special Agent credentials.
    The proposed rule stated that the media would be issued on request 
of the FAA Special Agent and presentation of his or her credentials. 
The final rule states that the media shall be issued upon request by 
the Administrator. As some commenters note, not all FAA Special Agents 
have duties and the type of training to conduct inspections at the 
airport, therefore, those agents do not need local media. The 
Administrator will provide the airport or aircraft operator with the 
names of Special Agents who require media.
    The final rule states that the media shall be issued ``promptly.'' 
The FAA expects that the media will be issued without undue delay, 
generally within a similar timeframe that media are issued to airport, 
aircraft operator, and contractor employees who need the media. The 
particular procedures will be worked out at each airport with its FAA 
field office.
    The FAA recognizes that, in most cases, it is important not to give 
unescorted access to those who have not had the specialized SIDA 
training required at that location. While all FAA Special Agents with 
the appropriate credentials have been given general training in access 
to and movement within the affected areas, each location has different 
layouts, ID media, and other systems. Accordingly, the final rule will 
provide that media are not issued to Special Agents until they complete 
the appropriate training, as stated in a security program. This 
practice will ensure that the agent is familiar with the procedures in 
place at that location, and will fully support the airport operator's 
and aircraft operator's training programs. Considering that the 
aircraft operator's procedures will be in an exclusive area agreement 
for the specific airport, the special procedures for issuing local 
media may be in either the airport or aircraft operator security 
program. These procedures will indicate when the training is given, 
including provisions for emergencies. In case of emergency, Special 
Agents may need the media without undergoing the full local SIDA 
training.

Section 108.7  Falsification

    Proposal: The FAA proposed Sec. 108.7 with no changes from the 
current Sec. 108.4. The current section was adopted on November 27, 
1996.
    Comments: There were no comments on this section.
    FAA response: Section 108.7 is not changed.

Section 108.9  Security Responsibilities of Employees and Other Persons

    Proposal: The FAA proposed to prohibit persons from tampering or 
interfering with, compromising, or modifying any security system, or 
carrying a deadly or dangerous weapon, explosive, or incendiary into 
sterile areas, secured areas, or operations area.
    Notice 97-12 proposed in Sec. 108.9(b) to prohibit any deadly or 
dangerous weapons, explosives, incendiaries, or other destructive 
substances on or about the individual's person or accessible property 
when entering secured areas or the air operations areas of an airport 
governed by part 107. Proposed Sec. 108.9(d) provided that this 
requirement would not apply to certain law enforcement personnel and 
other authorized persons.
    Also proposed was the continuation of the current Sec. 107.25(f) 
provision that no person could allow to be used or cause to be used any 
airport-approved access medium or identification medium that authorized 
access for a person or vehicle in any area controlled for security 
purposes in any other manner than that for which it was issued.
    Comments: Denver International Airport, AS, AA, CO, ATA, and RAA, 
recommend incorporating specific parts of the law that identify 
penalties. American Airlines, FedEx, UPS, ATA, and RAA support the 
concept but request a clear distinction between the individual's 
actions and the air carrier's actions and want a distinction between 
intentional and unintentional noncompliance. American Airlines, FedEx, 
ATA, NACA, and RAA recommend that any FAA action could be in addition 
to or in lieu of any action by the air carrier against its employee or 
contractor. Three commenters suggest that language be incorporated to 
prevent testing of security operations by unauthorized persons or those 
who present false credentials. United Express, AA, ATA, FedEx, and RAA, 
oppose re-screening of employees entering the sterile area, who have 
access clearance from the airport to enter secured areas. Alaska 
Airlines, AA, ATA, UPS, and RAA recommend removal of the reference to 
``other destructive substance.''
    FAA response: In response to the comment to place civil penalties 
into the final rule, the FAA recommends that those seeking more 
information on this topic, refer to part 13. Potential penalties are 
addressed in part 13, which are not normally added to each part of 
Title 14.

[[Page 37336]]

    Regarding the distinction between individual's actions and the 
aircraft operator's actions, it is not possible to state in the rule as 
to when enforcement action may be taken against just the individual, 
just the aircraft operator, or both. Aircraft operators are responsible 
for carrying out part 108 and their security program, which largely is 
done by making sure their employees, contractors, and agents carry them 
out. When an individual fails to do so, in each case the FAA will have 
to examine the facts and circumstances, and the parties' 
responsibilities under the statute, the regulations, and the security 
program, to determine what charges, if any, to bring against which 
persons. As to whether any FAA action would be in addition to, or in 
lieu of, any action by the aircraft operator, this determination also 
depends on the facts of each case.
    The rule does not distinguish between intentional and unintentional 
noncompliance. However, it seems likely that in most cases, if a person 
violated Sec. 108.9 the act would be intentional. If it appears that 
the violation was not intentional, the FAA would consider whether no 
enforcement action, or a mitigated penalty, was warranted.
    The FAA considered whether to prohibit unauthorized testing of any 
security system. Such a blanket prohibition would be unduly broad, 
however, considering the uncertainty of what might be meant by 
``testing'' the system. Section 108.9 does, in fact, prohibit some 
actions that persons might take to test the system that would unduly 
interfere with the proper operation of an air carrier. Deliberately 
entering a secured area without proper access or identification media 
would be a violation, for instance, whether the person was testing the 
system or had another reason for doing so.
    As to the proposed prohibition of weapons in the secured areas or 
AOA in Sec. 108.9(b), the FAA has determined that airport operators 
under Sec. 107.11 are able to handle such occurrences through their 
local laws that control the presence of weapons and other deadly items 
on airport property. The law enforcement personnel who respond to 
incidents as described in the airport operator's security program, 
enforce such local laws. Therefore, proposed Sec. 108.9(b) is not 
adopted. While the FAA will not take action at this time, it will 
continue to assess the need for any future comprehensive security 
enhancements regarding weapons and other destructive substances that 
may be detrimental to the flying public.
    Section 108.9(d) (proposed Sec. 108.9(c)), provides that this 
section does not apply to the FAA, or to aircraft operators, airport 
operators, or foreign air carriers while conducting inspections in 
accordance with their security program. These entities are expected to 
check their own compliance with the regulations by testing the system. 
However, not every breach by an employee can be characterized properly 
as an inspection. The security program will set out a regulated party's 
plan for conducting such inspections, including who may do them.
    The FAA has also determined that proposed Sec. 108.9(d), which 
indicates subsection (b) would not apply to persons authorized by the 
Federal government or the airport operator to carry weapons and other 
dangerous items on airport property, will also not be adopted. The FAA 
believes the local laws adequately address and recognize various 
persons who may have a need and the authority to carry weapons while on 
airport property. The FAA will also continue to assess these issues and 
address them as deemed appropriate in the future.

Subpart B--Security Program

Section 108.101  Adoption and Implementation

    Proposal: In Secs. 108.1 and 108.101, Notice 97-12 proposed to 
extend the application of part 108 to private charter and helicopter 
operations, as well as those air carriers that voluntarily hold 
security programs.
    Current part 108 applies only to airplane operators, and therefore, 
does not apply to helicopter operators, which are specifically excluded 
under current Sec. 108.1(b) and do not hold security programs. Current 
Sec. 108.5(a) makes part 108 applicable to scheduled and public charter 
operators only, not private charters. Section 108.5, paragraphs (a)(1) 
and (a)(2) require a full security program to be carried out for 
operations with more than 60 seats and for operations with any size 
airplane deplaning through a sterile area. Passengers enplaning from or 
deplaning into sterile areas from private charters and helicopter 
operations currently are subject to the security program requirements 
of other air carriers responsible for the security of that sterile 
area. In such a case, the helicopter operator or private charter does 
not take responsibility for the security of that sterile area under a 
security program.
    Current Sec. 108.5(a)(3) requires some security procedures to be 
carried out for scheduled passenger and public charter operations with 
more than 30 but less than 61 seats, and requires the rest of the 
security program to be carried out if the FAA advises them that a 
threat exists. This practice is commonly called a ``partial program,'' 
because only part of the program routinely is carried out. Section 
108.5(b) states that other certificate holders that have an approved 
security program shall carry out that program (commonly called a 
``voluntary program''). Because the definition of ``certificate 
holder'' in current Sec. 108.3 includes only passenger operations, some 
commenters have questioned the current practice of certain all-cargo 
carriers adopting a security program under part 108.
    Notice 97-12 proposed not limiting part 108 to airplane operations, 
but to apply the same security requirements to all aircraft depending 
on passenger seating configuration and kind of operation. It proposed 
in Sec. 108.101(a)(1) and (2) to require a full security program for 
scheduled and public charter operations with more than 60 seats, and 
for scheduled passenger and public charter operations with any size 
aircraft when enplaning from or deplaning into a sterile area. It 
proposed in Sec. 108.101(a)(3) to require a full security program to be 
carried out for private charter operations when passengers are enplaned 
from or deplaned into a sterile area.
    Notice 97-12 proposed in Sec. 108.101(a)(4) to require a partial 
program for certain other scheduled, public charter, and private 
charter operations that do not enplane from or deplane into a sterile 
area. The operations include a private charter operation with an 
aircraft having a passenger seating configuration of more than 30 
seats, a scheduled passenger or public charter operation with a 
passenger seating configuration of 31 to 60 seats, and a scheduled 
passenger, public charter, or private charter operation with a 
passenger seating configuration of less than 61 seats engaged in 
operations to, from, or outside of the United States.
    In Sec. 108.101(b), Notice 97-12 proposed that each air carrier 
that has a security program for other operations, shall carry out that 
program. Because part 108 would not use the term ``certificate holder'' 
and would not otherwise omit all-cargo operations from part 108, this 
paragraph would clarify that all-cargo operations may be under a 
security program.
    Comments: American Airlines, CO, NW, TWA, United Express (Great 
Lakes Aviation), UPS, ATA, RAA, and NACA state that private charter 
operations should not be subject to part 108 requirements. They note 
that there is no history of such operations creating a

[[Page 37337]]

security problem. American Airlines, ATA, and TWA indicate that, if the 
FAA decides to regulate private charter operations under part 108, the 
only security requirement that is justified is the screening of 
passengers who deplane into a sterile area. The Regional Airline 
Association, UPS, and Era Aviation state that only screening of 
passengers who enplane from or deplane into a sterile area is 
justified. Continental Airlines does not object to screening passengers 
who enplane through a sterile area, but wishes to deplane private 
charter passengers into a sterile concourse. The NACA states that 
private charters should be able to escort passengers through the 
sterile area as an alternative to screening, and that there should be 
portions of the airport outside of the sterile area available for 
private charter enplaning and deplaning.
    The City and County of Denver supports requiring private charter 
operations to have security programs, noting that an unscreened 
individual could deposit contraband for pick-up by another person or 
could return later himself or herself. This commenter states, ``with 
all of the technological advances and equipment being deployed, why 
would a private charter be allowed to compromise security?''
    American Airlines, United Express, ATA, and RAA state (in their 
comments on proposed Sec. 108.9(b)) that the rules should not be 
interpreted to prevent ``reverse screening,'' that is, screening upon 
deplaning at major airports as opposed to before boarding small 
commuter aircraft.
    Northwest Airlines opposes applying part 108 to helicopter 
operations. The Helicopter Association International (HAI) supports 
permitting rotorcraft operators who want to interline with larger air 
carriers the ability to hold a part 108 security program and enplane 
from and deplane into a sterile area. The HAI also states that airports 
should have a place outside of the sterile area where rotorcraft may 
operate.
    The United Parcel Service, FedEx, AA, RAA, ATA, and the Cargo 
Airline Association (CAA) support allowing other air carriers to 
voluntarily adopt a security program. The United Parcel Service, FedEx, 
and CAA would like the FAA to clarify that the air carrier operating 
under a voluntary program is required to comply with its particular 
program, not with the entire regulation. Federal Express also requests 
clarification that the primary objective of such programs is to protect 
large passenger aircraft and the passengers on them. Some commenters 
suggest that including voluntary programs in Sec. 108.1 without a 
specific note that not all of part 108 applies to them, may imply that 
they must comply with the entire regulation.
    The NACA recommends additional options for those aircraft operators 
conducting wet leases.
    FAA response: Section 108.101(a)(1) in this final rule will 
maintain the current requirement in Sec. 108.5(a)(1) that all scheduled 
passenger and public charter operations using aircraft with a passenger 
seating configuration of more than 60 seats have and carry out a full 
security program. Section 108.101(a)(2), as proposed, requires a full 
program for scheduled passenger and public charter operations using 
aircraft with a passenger-seating configuration of less than 61 seats 
when passengers are enplaned from or deplaned into a sterile area. The 
FAA believes that preserving the integrity of the sterile area is 
critical for maintaining civil aviation security. Few additional 
security measures are applied to persons or property once they are in 
the sterile area. The FAA has determined, therefore, that it is 
essential that all persons who enter the sterile area be subject to 
security procedures, either by inspection of their person and property 
or by another means, such as verifying their status as an authorized 
aircraft operator employee or airport employee.
    The FAA recognizes that the passengers in private charter 
operations have an affinity with each other, such as being on the same 
sports team and likely present little danger to one another. Permitting 
the passengers of private charter operations to enter the sterile area 
without being screened would compromise the sterile area. Screening 
persons entering the sterile area are intended not only to discover 
weapons, explosives, and incendiaries on individuals who intend to use 
them in a criminal manner, but also to find weapons carried by 
individuals with no criminal intent who forget they are carrying them. 
Each year at screening checkpoints, many weapons carried by such 
persons are prevented from entering the sterile area. If these weapons 
were brought into the sterile area, there is a risk that they could be 
used inappropriately by that person, or taken by another person and 
used. Any prohibited item that is introduced into the sterile area 
could be transferred to a scheduled or public charter flight. In 
addition, as Denver notes, an unscreened person on a private charter 
intentionally could transfer a weapon to another person, creating a 
danger to flights other than his or her own flight. For these reasons, 
the FAA continues to believe that all persons who enter the sterile 
area must be subject to security procedures.
    Further, the FAA believes that aircraft operators that place 
passengers in the sterile area should be responsible for screening 
these passengers. Under part 108, this task is accomplished by the 
operator holding and carrying out a security program.
    Accordingly, this final rule will require that all aircraft 
operators that enplane or deplane passengers through sterile areas, 
will be required to adopt and carry out a security program for those 
operations, regardless of the size or type of aircraft, or whether the 
flight is a scheduled, public charter, or private charter.
    As to the type of aircraft being used, the FAA has found no reason 
to believe that there is any difference in the risk to air 
transportation depending on whether helicopters or airplanes are being 
operated. By changing the rule from applying to airplane operators to 
applying to aircraft operators, helicopter operators will be required 
to adopt and carry out a security program under the same circumstances 
as airplane operators. This practice will ensure that all operators of 
aircraft of the same passenger seating capacity and kind of operation 
maintain similar levels of security. Further, removing the exclusion of 
helicopters from part 108 that is in current Sec. 108.1(b) may assist 
helicopter operators to transfer passengers, checked baggage, and cargo 
to other aircraft operators, because they can carry out the necessary 
security procedures.
    After further evaluation, the FAA has determined that there is no 
need to require security procedures for private charters other than as 
needed to protect a sterile area. As noted, private charters, by 
definition, involve groups of passengers who are closely affiliated, 
and present little danger to one another. The FAA agrees with the 
commenters that further regulation of private charters is not warranted 
because there is insufficient evidence that these passengers pose a 
danger to air transportation. The final rule in Sec. 108.101(b) 
requires private charter operators to have a security program 
(``Private Charter Program'') only if they enplane from or deplane into 
a sterile area. In that case, they need to carry out only the 
requirements related to protecting the sterile area.
    Section 108.101(c)(2) will require scheduled and public charter 
operations using aircraft of less than 61 seats that operate to, from, 
or outside of the United States, and do not enplane from or deplane 
into a sterile area, to hold a ``Partial Program.'' The Partial Program

[[Page 37338]]

requires the aircraft operator to carry out portions of the security 
program for all operations and to carry out the remainder when the FAA 
informs the operator that a threat exists. Because the performance, 
including flight range, of such aircraft has increased and the 
potential threat to U.S. interests outside of the country has increased 
since part 108 was adopted, some additional security measures should be 
carried out for such operations.
    The rule language will be amended for all Partial Programs. Section 
108.101(c)(1)-(2) of the final rule will address operations to which 
this applies. These operations include scheduled passenger or public 
charter that do not enplane from or deplane into a sterile area, when 
such an operation either (1) involves an aircraft having a passenger 
seating capacity of more than 30 and less than 61 seats, or (2) 
involves an aircraft having a passenger seating configuration of less 
than 61 seats and is engaged in operations to, from, or outside of the 
United States (or both). The security measures that must be carried out 
by such operations are included in Sec. 108.101(d). Section 108.101(d) 
will require the affected aircraft operators to comply with the 
requirements regarding security coordinators, law enforcement 
personnel, carriage of accessible weapons, carriage of prisoners, 
carriage of Federal Air Marshals, training, the contingency plan, bomb 
and air piracy threats, and security directives and information 
circulars. Section 108.101(d)(2) will require the aircraft operator to 
perform any other security measures that the FAA has approved upon 
request. This situation permits the aircraft operator to assume 
additional security responsibilities, such as exclusive areas. Section 
108.101(d)(3) will require that aircraft operators implement the 
remainder of the security program requirements when the FAA informs 
them that a threat to that operation exists.
    The FAA agrees that the final rule should not prohibit reverse 
screening. The FAA did not propose that reverse screening be 
eliminated. There are some operations that do no require screening for 
the flight itself, but the flight deplanes in a sterile area. This 
final rule will clarify that the operator of that flight must now have 
a security program. That program will include methods that the operator 
will use to ensure that passengers are not deplaned into the sterile 
area without having been screened.
    The comments on providing other areas of the airport for enplaning 
and deplaning passengers, which would be located outside the sterile 
area, and the comments regarding special provisions for wet leases, are 
beyond the scope of Notice 97-12 and will not be addressed in this 
rulemaking.
    Section 108.101(e) addresses ``voluntary programs'' for aircraft 
operators that are not required to have a security program but wish to 
have one to facilitate their operations. In response to comments, and 
after further evaluation, the final rule will provide further 
clarification. These programs will be referred to as ``Limited 
Programs'' in this final rule. The term ``voluntary'' might imply that 
the aircraft operator is not required to comply with the program. 
Although the aircraft operator is not required to adopt a ``Limited 
Program,'' once one is adopted, the aircraft operator is required to 
comply with it.
    Typically, holders of Limited Programs are all-cargo carriers that 
are not required to have a security program because they do not carry 
passengers and do not use sterile areas. However, all-cargo carriers 
may wish to have an exclusive area on an airport, taking responsibility 
for the security of that area, which would leave the airport operator 
with less direct responsibility under part 107 for that particular 
area. Or they may choose to carry out certain security measures to 
facilitate the transfer of cargo to passenger carriers. Acquiring a 
security program allows the all-cargo operator to receive Security 
Directives from the FAA, which directly impact their operations.
    The introductory text of Sec. 108.101(e) will clarify that the FAA 
may approve such programs; however, it is not required to do so. In 
each case, the FAA will evaluate all of the circumstances, including 
the security implications of the program and the ability of the 
aircraft operator to carry out the program, to determine whether 
security and the public interest warrant approval of the program. This 
introductory text also indicates that the FAA approves such programs 
only after a request by the aircraft operator. The FAA requires 
programs only for the aircraft operators included in Sec. 108.101(a), 
(b), and (c), and cannot require an aircraft operator to hold a 
security program under Sec. 108.101(e). This text also emphasizes that 
a security program may be approved for an aircraft operator that has a 
certificate under part 119. This provision is not intended to permit 
general aviation operators to have security programs under part 108. 
General aviation operators, if they are tenants on the airport and wish 
to have a security program, may request a tenant security program from 
the airport operator under part 107.
    Section 108.101(e) will require that the aircraft operator shall 
carry out selected provisions of Subparts C and D, and Sec. 108.305, as 
specified in its security program. This section also will require that 
the aircraft operator shall adopt and carry out a security program that 
meets the applicable requirements of Sec. 108.103(c). This requirement 
emphasizes that the security program is used only to permit aircraft 
operators to take on existing security responsibilities that are set 
out in part 108. Voluntary programs are not used to impose completely 
new security responsibilities. In determining which sections to 
include, the FAA will consider which responsibilities the aircraft 
operator is accepting, and will include in the security program all 
necessary requirements. In all cases, the aircraft operator will be 
subject to Security Directives under Sec. 108.305 that relate to the 
responsibilities that operator is accepting.
    Section 108.101(e) states that each aircraft operator that has 
adopted a security program under this paragraph shall carry out that 
program. Such an aircraft operator is not obligated to carry out other 
portions of part 108 that are not included in its security program. If 
an aircraft operator were to fail to carry out its program, the full 
range of actions would be available, including counseling, 
administrative action (warning notices and letters of correction), and 
civil penalties. In extreme cases, the FAA could withdraw approval of 
the security program.
    The FAA believes, as a result of this final rule, that there will 
be aircraft operators who will encounter for the first time a need to 
apply for and implement a security program under part 108. A short 
explanation of the relationship between their security program and this 
final rule follows. The FAA is required to prescribe rules, as needed, 
to protect persons and property on aircraft against acts of criminal 
violence and aircraft piracy, and to prescribe rules for screening 
passengers and property for dangerous weapons, explosives, and 
destructive substances (see 49 U.S.C. 44901 through 44904).
    To carry out the provisions of the statute, the FAA has adopted 
rules requiring aircraft operators to carry out various duties for 
civil aviation security. Title 14, Code of Federal Regulations, 
contains part 108, which is directed specifically toward aircraft 
operators. The part contains general requirements for promoting civil 
aviation security.
    Aircraft operators, as required by Sec. 108.101, have a security 
program that

[[Page 37339]]

is approved by the Administrator, containing information that specifies 
how they are to perform their regulatory and statutory 
responsibilities.
    The security program contains sensitive security information and is 
available only to persons with the need-to-know. Each aircraft 
operator's security program is a comprehensive document that details 
the full range of security procedures and measures that they are 
required to perform under part 108. The program includes procedures for 
screening of passengers, carry-on baggage, checked baggage, and cargo; 
using screening devices (such as X-ray systems and metal detectors); 
controlling access to aircraft and aircraft operator facilities; 
reporting and responding to bomb threats, hijackings, and weapons 
discovered during screening; reporting and protecting bomb threat 
information; identifying special procedures required at airports with 
special security needs; and training and testing standards for 
crewmembers and security personnel.
    Other security and information measures are contained in the 
Security Directives and Information Circulars, described in 
Sec. 108.305. These sources address threats to civil aviation security 
as well as responsive measures to those threats. Additionally, these 
sources provide sensitive information concerning various security 
devices, such as metal detectors and X-ray machines.
    The security program is far more detailed than the regulations, 
therefore, there will be items specifically addressed in detail that 
may be mentioned only in general terms in the rule language of part 
108. The security program, once approved, has the force of law and is 
to be adhered to the same as the part 108 regulations.
    In addition to including private charter and helicopter operations, 
this final rule now applies to all-cargo operations that adopt and 
implement security programs as described in Sec. 108.101(e). Obtaining 
an approved security program permits these operators to enter into an 
exclusive area agreement with an airport operator in compliance with 
Sec. 107.111.

Section 108.103  Form, Content, and Availability

    Proposal: The FAA proposed in Sec. 108.103 language describing the 
purpose of having air carrier security programs and described the 
requirements contained in Sec. 108.101 for those security programs. The 
FAA also proposed the means by which the air carrier would acknowledge 
receipt from the FAA of either a security program or amendment.
    Part of the proposed requirements included procedures and a 
curriculum to implement an individual accountability compliance 
program. The FAA proposed that the aircraft operator would have 
penalties imposed on persons who were not abiding with the security 
requirements. Penalties were to be levied per the standards contained 
within the air carrier's approved security program.
    The FAA also proposed to require that the air carrier designate an 
Air Carrier Security Coordinator (ACSC) and indicate the means by which 
this person can be contacted on a 24-hour basis.
    The proposal also contained language to permit the air carrier to 
have the necessary documents available for electronic transmission from 
another location or to have the necessary documents onboard the 
aircraft.
    In the final rule, the sections pertaining to these requirements 
have been clarified.
    Comments: The United Parcel Service, the Denver Airport, and ATA, 
agree that individuals should be held accountable, but strongly object 
to delegating enforcement authority to the air carrier. They prefer 
that the FAA take responsibility for such action.
    Northwest Airlines (NW), United Express, UPS, RAA, and ATA, support 
the creation of the position of an ACSC, but oppose the 24-hour contact 
requirement, unless the air carrier is permitted to name an alternate 
person to be designated in the ACSC's absence. Northwest Airlines, UPS, 
and RAA, suggest the use of the air carrier operations centers, which 
are available on a 24-hour basis. The ATA recommends the designation of 
an individual at the corporate level, rather than at each station. 
Alaska Airlines (AS) asks whether an air carrier can have several 
ACSC's, and states that the duties and position are not defined.
    Northwest Airlines and UPS state that the preamble acknowledges 
that the air carrier may have the necessary documents available for 
electronic transmission from another location or onboard the aircraft, 
but proposed Secs. 108.103(c)(2) and (3) do not appear to include this 
allowance. The commenters believe that by using the word 
``accessible,'' the regulation will convey more clearly the intent of 
the requirement.
    The ATA and RAA urge that the FAA contact corporate headquarters to 
obtain implementing instructions. Additionally, RAA and UPS believe 
that the wording in Sec. 108.103(c)(2) could be interpreted as 
requiring an onsite copy of 14 CFR part 108.
    FAA response: The FAA has reopened the comment period requesting 
additional comments on the issue of security compliance programs (64 FR 
43322, August 10, 1999). The FAA has deleted the language in proposed 
Sec. 108.103(b)(11) and (c)(6) regarding security compliance programs. 
However, the omission of security compliance programs from the final 
rule does not stop an aircraft operator from voluntarily adopting a 
compliance program at any time.
    The requirements regarding security programs and amendments are 
contained in Sec. 108.105.
    In keeping with the changed language from ``certificate holder'' to 
``aircraft operator'' the coordinator title has been changed to 
``Aircraft Operator Security Coordinator (AOSC)''. Final rule language 
has been incorporated in Sec. 108.215(a) to allow for the designation 
of an alternate when the AOSC is absent. Also, Sec. 108.215(a) has been 
changed in the final rule to clarify that the AOSC, or any alternate, 
is to be designated at the corporate level, and shall serve as primary 
contact for security related activities and communications with the 
FAA.
    Section 108.103(b) is intended to permit the aircraft operator to 
have the necessary documents available for electronic transmission from 
another location or the necessary documents onboard the aircraft. To 
require that aircraft operators have a copy of the security program 
accessible conveys the intent of the requirement. The FAA has amended 
Sec. 108.103(b) to require that each aircraft operator maintain an 
original copy of their security program at its corporate office. In 
addition, a complete copy, or the pertinent portions, of the aircraft 
operators' approved security program, or appropriate implementing 
instructions, should be accessible at each airport served. An 
electronic version of the program is adequate. The security program 
instructions may be site specific, and should be accessible at each 
airport location. The FAA agrees to change the word ``available'' to 
``accessible'' in the final rule.
    The purpose of having the security program or instructions 
accessible at each airport served is to ensure that personnel at each 
airport have the instructions on how to accomplish their security 
duties. The FAA checks compliance with this requirement by asking to 
see the instructions while at different airports. Asking for the 
instructions from corporate

[[Page 37340]]

headquarters would not adequately check for compliance with this rule.

Section 108.105  Approval and Amendments

    Proposal: The FAA proposed to slightly modify the time elements 
regarding the approval and the obtaining of amendments for security 
programs. Further, the FAA proposed to place time elements on itself, 
which before had not been contained in the regulation. Additionally, it 
proposed to revise the procedures making the processes consistent for 
both parts 107 and 108. Codification of the existing practice of the 
Assistant Administrator for Civil Aviation Security approving security 
programs and amendments was also proposed. Time elements for the 
submission and disposition of amendments were also included in the 
proposal.
    Comments: Northwest Airlines, UPS, FedEx, TWA, and ATA do not agree 
to increase the FAA timeframe for amendment approval from the current 
requirement of 15 days. One commenter, RAA, opposes any change in the 
current amendment process and states that proposed Sec. 108.105(b)(1) 
and (2) appear to be inconsistent.
    Two commenters, RAA and ATA, ask that the rule allow amendments to 
be approved for the air carrier and all similarly situated certificate 
holders.
    FAA response: The FAA attempts to be realistic when determining 
timeframes needed to provide full consideration of all security issues. 
The FAA will process each amendment as quickly as possible. While it is 
the FAA's intent to meet the time elements listed within the 
regulation, it is incumbent on the FAA to take an appropriate amount of 
time to review all relevant issues affecting the requested amendment.
    The final rule places in the regulation the existing practice of 
the Assistant Administrator for Civil Aviation Security, on behalf of 
the Administrator, issuing the approval for all security program 
amendments. In the final rules for parts 108 and 107, procedures for 
approval of security program amendments are identical.
    The FAA believes there may be instances when proprietary 
information may be contained within the proposed amendment submitted by 
an aircraft operator. It is for this reason that the FAA has decided 
not to act on the recommendation submitted by the RAA and ATA. Section 
108.105(b)(6) provides that any aircraft operator may submit a group 
proposal for an amendment that is on behalf of it and other aircraft 
operators that co-sign the amendment.
    The FAA will establish internal procedures to periodically review 
amendments it initiates. The procedures will ensure that the amendment 
is in fact appropriately placed in the security program, as opposed to 
requiring an amendment to part 108. The FAA believes that the ASAC 
recommendation to include expiration dates on amendments, was directed 
toward the amendments issued by the FAA and not those amendments 
requested by aircraft operators. The FAA recognizes that there will be 
circumstances when information, due to its sensitivity, cannot be 
discussed in a public forum. In those instances, the amendment 
processes for security programs provide a means to impose and implement 
needed requirements.
    The final rule will allow the FAA 45 days after receipt of a 
proposed amendment to approve or deny that amendment. The FAA maintains 
that the amendment process may take additional time if the proposed 
amendment is modified or denied.
    In addition to retaining the 45-day submission requirement, the FAA 
will retain a 30-day timeframe for a FAA response to a proposed 
amendment. These timeframes do not address time requirements for 
emergency amendments issued by the FAA. The additional time required by 
the FAA is needed to complete the review process and to ensure a timely 
and efficient exchange of information. The exchange of information not 
only occurs between the FAA and the aircraft operator but between 
internal FAA offices as well. There are instances when threat analyses 
are needed, requiring additional time to process the requests. 
Therefore, the FAA has determined that it is necessary to retain the 
language as proposed in Notice 97-12.
    The FAA has deleted the last sentence in proposed 
Sec. 108.105(b)(1) because it is unnecessary and confusing.

Subpart C--Operations

Section 108.201  Screening of Persons and Accessible Property

    Proposal: The FAA proposed that the title and section number of 
current Sec. 108.9 ``Screening of passengers and property'' be changed 
to Sec. 108.201, ``Screening of persons and property, and acceptance of 
cargo.'' Air carriers currently are required to screen all persons 
entering a sterile area through a screening checkpoint. By changing the 
title, the FAA proposed to more accurately reflect that all persons, 
not just passengers, are required to be screened as they enter the 
sterile area through a screening checkpoint.
    Further, to facilitate the transit of air carrier employees who 
have already been subjected to other security systems, the proposal 
provided that persons who are authorized unescorted access to a SIDA, 
may enter a sterile area from a public area using security procedures. 
These security procedures were proposed in Sec. 107.207, ``Access 
control systems'' under Notice 97-13 that revised part 107.
    Proposed Sec. 108.201(b) would have required that the air carrier 
``detect and prevent'' the carriage of any explosive, incendiary, 
deadly or dangerous weapon, or destructive substance on or about 
individuals or their accessible property aboard an aircraft or upon 
entry into a sterile area. This proposed language change was based on 
current procedures under the air carrier approved security programs 
which require that the air carrier ``detect and prevent'' or be subject 
to enforcement action.
    The requirements proposed in Sec. 108.201(d), (e), and (f) would 
transfer unchanged from current Sec. 107.20 and Sec. 107.21. These 
current sections require that an individual submit to screening of 
their person and property, and restrict the carriage of firearms into 
sterile areas to those persons required to carry the weapons in 
performance of their duties. Those persons who are required to carry 
weapons in performance of their duties are generally law enforcement 
officers traveling armed aboard aircraft, and persons specifically 
authorized to do so under an approved security program. Since control 
of the sterile area, and performance of screening are the air carriers' 
responsibilities, these requirements are more appropriate to part 108 
than to part 107.
    Proposed Sec. 108.201(h) would have required that air carriers 
prevent the carriage of any explosive or incendiary onboard an 
aircraft. Although current security procedures applicable to the 
acceptance of cargo and checked baggage for transport onboard passenger 
aircraft are contained in the air carrier's standard security program, 
the basic requirement to apply security measures to cargo and checked 
baggage was not set out in detail in the current rule.
    Comments: Trans World Airlines, RAA, and ATA oppose any 
modification of the requirement to screen passengers only. The RAA 
states that expanding the requirement to include all persons, could 
limit the air carrier's ability to provide access to the sterile area 
and may result in it having to limit access to sterile areas to 
ticketed passengers

[[Page 37341]]

only (rather than to all persons) or to close a checkpoint when there 
are no departing flights.
    Alaska Airlines, FedEx, UPS, United Express, CAA, RAA, and ATA 
state that the air carrier cannot ``detect'' introduction of deadly or 
dangerous items 100% of the time, they believe that ``deter'' should be 
substituted for ``detect'' in the General Requirements paragraph of 
Sec. 108.201. Federal Express, UPS, NACA, ATA, and RAA oppose any 
modification of the FAA requirement to rescreen employees. The NACA 
suggests that the following language be added ``* * * inspect each 
person entering a sterile area who does not have approved access 
media.''
    FAA response: The screening of all who wish to enter a sterile area 
has been in effect, under Sec. 108.9 (c), for many years. All 
individuals, with limited exceptions, who enter the sterile area 
through the screening checkpoint must be screened.
    Notice 97-12 proposed that each aircraft operator required to 
conduct screening, use the facilities, equipment, and procedures 
described in its security program to ``prevent or detect'' the carriage 
of any deadly or dangerous weapon, explosive, incendiary, or other 
destructive substance, on or about each person or the person's 
accessible property before boarding an aircraft or entering a sterile 
area. The current requirement in Sec. 108.9(a) is to ``prevent or 
deter.'' The FAA has decided to accept the commenters'' suggestion so 
the language in Sec. 108.201(a) remains ``prevent or deter.'' Both 
phrases adequately reflect the overall intent that aircraft operators 
must use the measures in their security programs to keep deadly or 
dangerous weapons, explosives, or incendiaries off the aircraft and out 
of the sterile area. Further, the phrase ``other destructive 
substances'' has been removed from the list of prohibited items.
    The FAA does not agree with the suggestion to exempt from screening 
any employee who has been issued an identification medium who is 
entering a sterile area at a screening checkpoint. The FAA attempted 
such a system in the past and found that the security checkpoint was 
not equipped to handle the increased workload of checking ID's of 
employees. The aircraft operator may seek to have an alternate entry 
point at which employees can enter without being screened, but where 
other security measures are carried out.
    As discussed above in the General Discussion of the Rule, the 
requirements that appeared in Sec. 108.201 of Notice 97-12 are now in 
separate sections. The sections that appear in the final rule are 
Sec. 108.201, ``Screening of persons and accessible property,'' 
Sec. 108.203, ``Acceptance and screening of checked baggage,'' and 
Sec. 108.205, ``Acceptance and screening of cargo.'' Requirements for 
acceptance and control of cargo and checked baggage that appeared in 
Notice 97-12 Sec. 108.219, ``Security of aircraft and facilities,'' now 
appear in either Sec. 108.203, ``Acceptance and screening of checked 
baggage,'' or Sec. 108.205, ``Acceptance and screening of cargo.''

Section 108.203  Acceptance and Screening of Checked Baggage

    Proposal: Under the proposal, these requirements were contained in 
Sec. Sec. 108.201, 108.219(c), 108.213(b) and 108.225.
    Comments: No comments were received.
    FAA response: This section combines the requirements for checked 
baggage into one section. The language clarifies that although this 
section prohibits loaded firearms in checked baggage, as stated in 
Sec. 108.203(d)(4), this section does not prohibit the carriage of 
ammunition in checked baggage or in the same container as a firearm. It 
also refers to the additional requirements governing carriage of 
ammunition on aircraft in title 49 CFR part 175. The regulation refers 
to preventing or deterring ``unauthorized'' explosives or incendiaries. 
Some explosives or incendiaries may be shipped if they are labeled and 
marked in accordance with the Hazardous Materials Regulations. Any 
other materials either improperly packaged, marked, or labeled, or 
otherwise not permitted to be carried aboard passenger aircraft are 
``unauthorized.''

Section 108.205  Acceptance and Screening of Cargo

    Proposal: This section combines the requirements for transport of 
cargo into one section. Under the proposal, these requirements were 
contained in Sec. Sec. 108.201 and 108.219(c), (d) and (e). Although 
proposed Sec. 108.201 addressed screening of persons and property and 
acceptance of cargo, no specific mention of cargo appears in this 
section, it is referred to instead as ``property.''
    Comments: The United Parcel Service, ATA, CAA, and RAA believe that 
a threat does not exist to justify expanding the requirements to cargo 
acceptance at all locations. It is their belief that the requirements 
should only apply to cargo accepted at the ticket counter. The United 
Parcel Service and RAA believe that the improvements to the Air Carrier 
Standard Security Program (ACSSP) that the FAA Cargo Baseline Working 
Group suggested, are sufficient and that there is no need to expand the 
regulation.
    FAA response: Cargo acceptance is addressed in the security 
programs; the acceptance is not just limited to the ticket counter but 
addresses all cargo that may be transported onboard an aircraft that is 
transporting passengers. The inclusion of a section on cargo in the 
regulation does not impose any further regulations beyond those 
currently in the security program. The FAA disagrees that the only 
security threat exists with cargo accepted at the ticket counters. The 
final rule addresses all cargo regardless of where it was accepted. The 
final rule does not expand cargo security requirements beyond those 
already existing in security programs.

Section 108.207  Use of Metal Detection Devices

    Proposal: Metal detection devices (MDD's) (such as walk-through 
metal detectors) have long been an integral part of the passenger 
screening system. Testing, calibration, and operational requirements 
for MDD's are currently incorporated in the air carrier's security 
program. The FAA proposed a new section that would require the air 
carrier to use equipment that meets the calibration standard set by the 
FAA, and to conduct screening with MDD's in accordance with its 
approved security program. This section would not change the current 
security program requirements.
    Comments: No comments were received.
    FAA response: There are no changes to the final rule language, 
except that the section is renumbered from Sec. 108.203 to 
Sec. 108.207.
    The aircraft operator shall apply the FAA calibration standard set 
by the FAA to conduct screening with metal detection devices in 
accordance with the operator's security program. This application 
applies to all domestic locations and at those locations outside of the 
United States where the aircraft operator has operational control of 
its screening process.

Section 108.209  Use of X-ray Systems

    Proposal: In the proposal, current Sec. 108.17 entitled ``Use of X-
ray systems'' was renumbered as proposed Sec. 108.205 and included 
under new Subpart C, ``Operations.'' In proposed Sec. 108.205, the FAA 
would update the technical standards for X-ray systems. The reference 
incorporating American Society for Testing and Materials (ASTM) 
Standard F-792-82 would be updated to reflect the current ASTM 
Standard, F-792-88 (re-approved with

[[Page 37342]]

an amendment in 1993). In addition, references to the Food and Drug 
Administration regulations governing cabinet X-ray systems manufactured 
before April 25, 1974, are no longer necessary and, therefore, would be 
deleted.
    Under this proposal, application of Sec. 108.205 would be extended 
to X-ray systems under the air carrier's operational control at 
airports outside the United States as currently required in security 
programs. The X-ray systems used for this purpose should meet the same 
standards as X-ray systems used to inspect baggage in the United States 
to ensure that the prescribed security measures are equally effective. 
The X-ray systems owned and/or operated by government authorities or 
government-mandated security companies at foreign airports and not 
under the operational control of the air carrier would not be subject 
to the proposed regulation.
    Notice 97-12 proposed to delete the term ``passengers'' under 
Sec. 108.205(e) and substitute the term ``persons'' recognizing that, 
during daily operations, passengers are not the only category of 
individuals who enter a sterile area through a screening checkpoint 
with an X-ray system.
    Additionally, in Notice 97-12, the FAA proposed to omit the 
requirement that the air carrier issue an individual dosimeter to each 
operator of an X-ray system.
    Comments: Alaska Airlines, TWA, RAA, and ATA support deleting the 
dosimeter requirement. Alaska Airlines questions whether some of the 
new X-ray equipment does or will subject the items to more than one 
milloroentgen. The commenter believes that this requirement will 
confuse the public as to when film should be removed from items to be 
X-rayed.
    FAA response: There are no substantive changes to the final rule 
language, except that the section is renumbered from proposed 
Sec. 108.205 to Sec. 108.209 in the final rule.
    Most X-ray systems in use today emit less than one milloroentgen of 
radiation. The requirement to post a sign suggesting removal of all 
kinds of film applies only in those few situations where the equipment 
in use does emit more than one milloroentgen. Further this requirement 
is not new; it is in current Sec. 108.17(e).
    The FAA is not aware of any incident in which a person received 
excessive radiation from X-ray machines used for screening under an 
FAA-approved program. Due to this safety record and encouraged by 
today's technology, which uses lower levels of radiation for this 
equipment, the final rule eliminates the need for dosimeters. Aircraft 
operators would still be required to comply with requirements of other 
Federal agencies or State governments regarding the use of dosimeters.
    The final rule changes the reference from ``carry-on bags'' to 
``accessible property,'' which is consistent with Sec. 108.201. At 
screening checkpoints, property that will be accessible in the sterile 
area or the aircraft or both are screened.
    In the regulatory language, the FAA has removed the term 
``dangerous articles.'' Instead, the FAA has inserted the words 
``explosives, incendiaries, and deadly or dangerous weapons.'' The FAA 
believes the latter terms better describe the items for which the 
aircraft operators are carrying out the screening processes.

Section 108.211  Use of Explosives Detection Systems

    Proposal: The FAA proposed renumbering current Sec. 108.20 entitled 
``Use of Explosives Detection Systems'' as Sec. 108.207 and placing it 
in new Subpart C, ``Operations.''
    Comments: No comments were received.
    FAA response: In addition to the proposal, the FAA has added 
paragraph (b) due to the fact that explosive detection systems that use 
X-ray technology must comply with the requirements of Sec. 108.209(e) 
regarding posting of signs. While this new paragraph clarifies the 
requirements for the use of explosive detection systems, it does not 
add any new compliance costs, since the requirement for posting signs 
where X-ray screening equipment is used has long been in the 
regulations. Further, manufacturers have already provided the required 
information on the machines. In the final rule, proposed Sec. 108.207 
is renumbered as Sec. 108.211.

Section 108.213  Employment Standards for Screening Personnel

    Proposal: The FAA proposed to renumber Sec. 108.31 entitled, 
``Employment standards for screening personnel'' to Sec. 108.209 and 
place it in new Subpart C, ``Operations.'' The proposal provided that, 
in the event the air carrier is unable to implement this section for 
screening functions outside the United States, the air carrier must 
notify the Administrator of those air carrier stations so affected, to 
facilitate resolution of compliance issues.
    Comments: The Denver International Airport comments that the FAA 
standards should not preclude any local licensing requirements for 
security or guard personnel that are more stringent than the FAA 
requirements. They also state that security or guard personnel should 
be tested for the ability to speak English, by the FAA.
    FAA response: In the final rule, proposed Sec. 108.209 is 
renumbered as Sec. 108.213 with no additional changes.
    The FAA cannot categorically state that all local licensing 
requirements for security personnel either are or are not preempted by 
the Federal government and part 108. Each case must be decided on its 
facts and circumstances.
    The aircraft operators are responsible for ensuring that personnel 
meet all requirements, including requirements as contained in this 
regulation. The FAA does not have the operational capability to test 
the large numbers of screeners who qualify each year.

Section 108.215  Security Coordinators

    Proposal: Notice 97-12 proposed to consolidate Secs. 108.10 and 
108.29, describing the duties and responsibilities of the Ground 
Security Coordinator (GSC) and the In-flight Coordinator, into one 
section. The FAA also proposed that the air carrier designate an Air 
Carrier Security Coordinator to ensure that the FAA had a security 
official to contact, at the corporate level, whenever the need arises.
    Existing regulations provide for the GSC to immediately initiate 
corrective action for noncompliance with security regulations. At 
foreign airports, the air carrier may not be performing all security 
measures and may be unable to take corrective action. Therefore, Notice 
97-12 proposed that when a host government agency or contractor 
provides security measures, the air carrier would notify the 
Administrator for assistance in resolving noncompliance issues. The 
Administrator could then work with the host government to address the 
issues.
    The FAA also proposed to omit the distinction made in reference to 
``direct employees'' versus ``contract employees.''
    Comments: The United Parcel Service, FedEx, RAA, and ATA, state 
that ``daily'' requirements for GSC's should be replaced with 
``routinely'' and that the wording ``departing flights'' should be 
added because many air carriers have late arrivals with no departure 
activity.
    FAA response: Due to the change of terminology from ``air carrier'' 
to ``aircraft operator'' the FAA has determined that the new title of 
the proposed position will be changed to Aircraft Operator Security 
Coordinator (AOSC).
    The Section-by-Section Analysis of Notice 97-12 explained the 
intent that

[[Page 37343]]

the AOSC be appointed at the corporate level. This language has been 
added to Sec. 108.215(a) and clarifies that the AOSC is to be 
designated at the corporate level and shall serve as the primary 
contact for security-related activities and communications with the 
FAA. The FAA agrees with the need for the availability of an alternate 
AOSC to act in the AOSC's absence. The final rule requires that the 
alternate also shall be designated at the corporate level.
    The FAA agrees with the comment regarding departing flights in 
connection with GSC duties. Therefore, in Sec. 108.215(b) the word 
``departure'' was inserted after ``domestic and international flight.''
    The FAA did not agree with the suggestion to change the frequency 
of performance for the GSC's duties. The commenter suggested that the 
frequency be changed from ``daily'' to ``routinely''. The FAA believes 
that the routine performance of these functions leaves the frequency up 
to the individual and would be open to misinterpretation; therefore, 
the language has not been changed.
    It is inherent that the aircraft operator is responsible for 
managing any employees carrying out various security duties whether 
they are direct or contract employees. Therefore, the FAA omitted the 
distinction between ``employee'' and ``contract employee.''

Section 108.217  Law Enforcement Personnel

    Proposal: As in the past, Notice 97-12 proposed that part 108 air 
carriers operating passenger service or public charter passenger 
operations at airports not governed under proposed Sec. 107.217 would 
be required, in the absence of the part 107 airport providing law 
enforcement support, to provide law enforcement personnel in a manner 
adequate to support its security program.
    Comments: Commenters suggest using the term ``law enforcement 
officer'' or ``LEO,'' for consistency and providing a clear definition 
of ``LEO.'' These commenters also recommend that the rule make a clear 
distinction between a LEO and private security. The ATA and RAA suggest 
exempting non-scheduled charter operations from the requirement for law 
enforcement personnel.
    FAA response: The FAA agrees that the term ``law enforcement 
officer'' should be used consistently throughout part 108. However, due 
to the allowances which are made for part 107, the term ``law 
enforcement personnel'' must be used in Sec. 108.217. This requirement 
is different than the requirements of Secs. 108.219 and 108.221 for the 
carriage of weapons and the escorting of prisoners. In those sections, 
the person is referred to as a ``law enforcement officer.'' In 
Secs. 108.219 and 108.221, the FAA is referring to someone who is a 
Federal law enforcement officer or a full-time municipal, county, or 
State law enforcement officer who is the direct employee of a 
government entity. The FAA has the authority to establish such 
requirements for persons desiring to board the aircraft armed.
    The FAA recognizes the authority of State and local governments to 
grant police-like privileges to persons other than commissioned law 
enforcement officers. The FAA is aware of at least one state that 
grants such powers to personnel of private security companies. The 
statute specifically provides that airports may meet their obligation 
to provide law enforcement support by providing for ``qualified State, 
local, and private law enforcement personnel'' (49 U.S.C. 44903(c)).
    In light of this situation, the FAA must provide airport operators 
with the ability to use either commissioned law enforcement officers or 
any other persons who have been granted the authority set out in 49 
U.S.C. 44903(c) and in Sec. 107.217, by the State or local government, 
to react to specific situations as described in part 107.
    Therefore, in both parts 107 and 108, the term ``law enforcement 
personnel'' is used to describe both the law enforcement officers and 
private persons who have been granted certain powers by the State or 
local government. An airport operator may use either type of personnel 
to meet the requirements of part 107. Training received by a security 
company employee, who is granted the appropriate authority by the State 
or local government, must be acceptable to the Administrator if the 
State or local jurisdiction does not prescribe training standards for 
them.
    The FAA does not agree with the suggestion to exempt non-scheduled 
public charter operations from the requirement for law enforcement 
personnel. Depending on the size of aircraft used, the aircraft 
operator may need to screen passengers (Sec. 108.101(a)). Considering 
the incidents that can occur with screening (such as discovery of a 
weapon) it is important to have law enforcement support. For operators 
of smaller aircraft (Sec. 108.101(c)), it is important that employees 
know how to contact law enforcement support should that be needed 
(Sec. 108.217(a)(2)).
    In the final rule, proposed Sec. 108.211 is renumbered as 
Sec. 108.217.

Section 108.219  Carriage of Accessible Weapons

    Proposal: In Notice 97-12, Sec. 108.213, the FAA proposed a revised 
procedure for carrying weapons in the cabin by authorized law 
enforcement officers. This proposal was intended to provide criteria 
for the carriage of firearms and to control the number of firearms in 
the cabin. The control of weapons topic was the impetus for the 
creation of the ASAC Carriage of Weapons Task Force in January 1992. 
The proposal was based on the Task Force recommendations where 
consensus was reached at the time the recommendations were developed. 
The proposed rule contained regulatory language specifically 
identifying the need for law enforcement officers to have their weapons 
available during a flight.
    Comments: A majority of the comments responding to Notice 97-12 
address the carriage of firearms onboard an aircraft. One commenter 
strongly supports restricting the carriage of firearms onboard aircraft 
by anyone. Many commenters strongly support allowing all Federal agents 
to carry their authorized firearms on aircraft.
    The Allied Pilots Association (APA) and ALPA do not support changes 
that would modify proposed Sec. 108.213(a)(2)(iv) to make it easier to 
board aircraft with firearms.
    The most opposition to the restrictions came from U.S. Customs 
Service Agents. Many Customs agents, along with several other agents 
and officials from Federal agencies, recommend that all Federal agents 
authorized to carry firearms in the performance of their official 
duties be allowed to carry firearms onboard any aircraft. Furthermore, 
they believe that they should not be required to place firearms in 
checked baggage because of the greater risk of theft and consequent 
misuse of government-owned firearms.
    Several commenters suggest that the FAA should not be in the 
position to restrict Federal LEOs from carrying their firearms onboard 
aircraft.
    One commenter suggests that the proposed rule conflicts with 49 
U.S.C. 46505. Another commenter notes that the authority to carry 
firearms is given to Federal agents by statute, therefore, it is 
inappropriate to limit by regulation.
    One commenter proposes that Federal agents be allowed to carry 
their firearms in a locked container onboard or give their firearms to 
the captain prior to the flight. Another commenter opposes notifying 
ticket agents that LEOs are putting their firearms into the checked 
baggage system, which is not secure.

[[Page 37344]]

Another commenter suggests that armed LEO's should be advised of the 
identity of all other armed LEO's onboard a flight.
    FAA response: Final rule Sec. 108.219, which was proposed 
Sec. 108.213, received a majority of the total comments addressing 
Notice 97-12. Final rule Secs. 108.219-108.223 are revised, to some 
degree, based on comments received but continue to be structured 
largely from the recommendations of the Carriage of Weapons Task Force 
(CWTF) that has reviewed these issues since 1992.
    The FAA has the authority and responsibility to ensure the safety 
and security of passengers within our national airspace system. The FAA 
has chosen, as one means of addressing that responsibility, to set 
controls on those persons who may carry a firearm in the cabin of an 
aircraft. The FAA has sought to meet the needs of law enforcement 
agencies.
    One commenter suggests that the proposed rule conflicts with 49 
U.S.C. 46505. Section 46505 provides for criminal penalties for persons 
who carry a concealed, accessible weapon. The criminal penalty does not 
apply to a law enforcement officer ``authorized to carry arms in an 
official capacity.'' This exception applies when the officer, in the 
performance of his or her duties, has a need to have the firearm 
accessible as defined in part 108.
    It is the goal of both the FAA and the aviation industry to have as 
few weapons as possible carried onboard a flight. The FAA is aware that 
on a daily basis across the United States armed law enforcement 
officers board passenger carrying aircraft. The FAA recognizes the need 
for law enforcement officers to fly armed while in the performance of 
their duties, but has revised the rules to state more clearly when to 
permit this practice.
    There appears to be a general misunderstanding by many commenters 
on the criteria necessary for flying armed, as detailed in the Notice. 
Neither this final rule nor the Notice limits the carriage of firearms 
to Federal agents. Likewise, neither this final rule nor the Notice 
limit the carriage of firearms specifically to the FBI. Federal agents 
and State and local officers who meet the criteria for law enforcement 
designation, regardless of the employing agency, may be permitted to 
fly armed for those duties as listed in this final rule.
    This final rule clarifies FAA's very specific employment criteria 
needed for recognition as a law enforcement officer. Having met those 
criteria, having met the standards for a need to fly armed, and having 
received FAA's training program, the officer may, when permitted by the 
aircraft operator, fly armed.
    The Notice provided a list of circumstances under which LEOs would 
be considered to have a need to travel armed as determined by the 
employing law enforcement agency.
    New Sec. 108.219(a)(2) provides that the LEO must have a need to 
fly armed, as determined by the LEO's employing agency. Section 
108.219(a)(2)(i) provides for an LEO to carry a weapon when he or she 
is on protective duty, for instance, assigned to a principal or advance 
team, or on travel required to be prepared to engage in a protective 
function. Section 108.219(a)(2)(ii) provides for the conduct of a 
hazardous surveillance operation.
    New Sec. 108.219(a)(2)(iii) provides for carriage of weapons by an 
LEO who is on official travel required to report to another location, 
armed and prepared for duty. This includes reasonable allowances for 
delays that may occur in travel.
    New Sec. 108.219(a)(2)(iv) accommodates the needs of Federal LEO's 
who need to be armed and available for duty when they are traveling, 
even when not on official travel. Because Federal LEO's have 
jurisdiction throughout the country, their employing agency may call on 
them to return to duty at any place and time. This need is based on an 
agency-wide directive or policy statement of the employing agency. Not 
all Federal LEO's are authorized to fly armed, particularly when they 
are not on official travel at that time. Under this rule, Federal LEO's 
will not fly armed on non-official travel except in accordance with an 
agency-wide policy governing that type of travel.
    Under Sec. 108.219(a)(2)(v), control of a prisoner, in accordance 
with Sec. 108.221, or an armed LEO on a round trip ticket returning 
from escorting, or traveling to pick up, a prisoner also constitutes a 
need to fly armed.
    Federal Air Marshals are specifically permitted to fly armed while 
on duty status, as stated in Sec. 108.219(a)(2)(vi). Given the purpose 
of the FAA's Federal Air Marshals' program, it is evident that they 
have a need to fly armed.
    Bondsmen and bounty hunters, and law enforcement officers while 
they are serving as bondsmen or bounty hunters, are not authorized to 
travel armed. Similarly, private security guards serving as body guards 
or providing other protective services are not authorized to travel 
armed. These persons either do not meet the requirements for a law 
enforcement officer in Sec. 108.219(a)(1), or the standards for a need 
to fly armed in Sec. 108.219(a)(2), or both.
    The descriptions of a need to fly armed have been altered to 
accommodate the law enforcement community's concern that the proposed 
rule would have unduly limited their legitimate law enforcement 
functions. While this may permit many of the nation's LEO's to fly 
armed, it greatly defines and controls the carriage of weapons compared 
with the current rule. We note that law enforcement agencies view very 
seriously any LEO's inappropriate conduct with a weapon. We also note 
that portions of this new rule make the LEO directly responsible to the 
FAA for complying with the requirements, including those regarding use 
of alcohol and the location of the weapon. The failure of the LEO to 
comply with these requirements could lead to civil penalty action by 
the FAA. The FAA believes that the limits on the need to carry weapons, 
and the personal accountability of the LEO to both the FAA and the 
employing agency, provide appropriate controls on the carriage of 
weapons without unduly interfering with legitimate law enforcement 
functions.
    As to some LEO's comments that they need to travel armed so they 
are prepared to assist the pilot if needed, history shows that the need 
for the use of deadly force on a flight is extremely rare. Some 
commenters note that the pilot may seek assistance to restrain an 
unruly passenger. The FAA believes that all law enforcement officers, 
due to their training, are uniquely qualified to assist when there is a 
need to restrain an individual.
    Regarding the concern expressed for placing firearms in checked 
baggage and having them stolen and subsequently misused, the FAA 
acknowledges that concern. However, the aircraft operators are 
responsible for the security of all checked bags and the incidents of 
theft of firearms from checked bags is low.
    The concern expressed about notifying the ticket agent of an 
unloaded firearm placed in checked baggage has been brought up 
previously to the FAA. Law enforcement officers were concerned about 
the ``outside tagging'' of baggage when an unloaded firearm was 
declared. The FAA requirement remains that firearms placed in checked 
baggage will be declared as unloaded at the time the bag is checked. 
The FAA believes that this issue has been cleared up with the passage 
of Public Law 103-159, also known as the Brady Handgun Violence 
Prevention Act. This law prohibits the aircraft operator from tagging 
or labeling, on the outside, any

[[Page 37345]]

luggage or baggage indicating there is a firearm inside the container.
    The CWTF explored the issue of having lockers onboard the aircraft 
for the storage of firearms. The task force found it would create far 
more problems than it would resolve (such as, location to unload/reload 
the firearm, adequate number of lock boxes per aircraft, and 
modification of the aircraft to accommodate the lock boxes). Due to all 
of the concerns expressed, no recommendation was forwarded to the FAA 
regarding this issue.
    The FAA reiterates that any passenger may, upon notification to the 
aircraft operator, place an unloaded firearm in checked baggage 
provided the firearm is checked in a hard-sided, locking container and 
that the presence of the unloaded firearm is declared at the time the 
bag is checked. These same criteria apply to flight deck and cabin 
crewmembers should they wish to carry a firearm onboard the aircraft.
    In Notice 97-12 and in this final rule there is a requirement for 
the aircraft operator to notify all armed LEO's onboard of the presence 
of all other armed LEO's who are passengers on that flight. In the 
Notice the one exception was that the aircraft operator would not 
notify other LEO's of the presence of a FAM, rather the FAM would 
notify the other LEO's. After further consideration the FAA has 
determined that having the aircraft operator notify other LEO's of 
FAM's on the flight will enhance coordination for the safety of all 
concerned. Therefore, under this rule the aircraft operator will notify 
all LEO's of the presence of all other LEO's, including FAM's. The new 
rule also requires that the aircraft operator must not close the doors 
until the notification is complete under circumstances described in the 
security program.
    In response to a suggestion that there should be recurrent training 
for law enforcement officers flying armed, the FAA agrees that this 
suggestion would be an enhancement to the program. However, since it 
was not addressed in the Notice and would create an increased 
requirement on law enforcement, it cannot be addressed in this final 
rule. The FAA will issue an Advisory Circular that addresses the 
training program for law enforcement officers flying armed and 
recurrent training also will be addressed.
    Law enforcement officers who are not in uniform are required under 
new Sec. 108.219(d) to keep their weapons concealed and out of view. 
This is to avoid creating concern among other passengers who may see 
the weapon and not realize the person is a LEO authorized to carry it. 
LEO's are given the option of either keeping the weapon on their person 
or in immediate reach. However, the FAA recognizes that there may be a 
few instances when an armed officer will be in uniform while traveling. 
Since uniformed law enforcement officers are conspicuous, the FAA has 
added the stipulation that if an armed officer is traveling in uniform, 
the officer must maintain the weapon on their person at all times while 
aboard the aircraft. Because the officer is in uniform, other 
passengers will immediately recognize the LEO as having authority to be 
armed. All other restrictions concerning an armed law enforcement 
officer and the weapon apply. There is no economic impact on the 
aircraft operator or the officer by this addition.
    In new Sec. 108.219(a)(1), the FAA uses the phrase ``unless 
otherwise authorized by the Administrator.'' This phrase has been 
placed in the regulatory language to provide for those occasions when 
foreign officials may be traveling in the United States with their 
country's armed law enforcement or military personnel. In such cases, 
the carriage of weapons by these foreign officials will be handled in a 
manner in keeping with international protocol. Depending on the 
circumstances, the FAA or the U.S. State Department will be in contact 
with the aircraft operator when such needs arise.

Section 108.221  Carriage of Prisoners Under the Control of Armed Law 
Enforcement Officers

    Proposal: In Notice 97-12 the FAA proposed Sec. 108.215, ``Carriage 
of passengers under the control of armed law enforcement escorts,'' to 
provide more detailed requirements for escorting prisoners in part 108. 
In the final rule proposed Sec. 108.215 is renumbered as Sec. 108.221.
    Comments: The APA suggests creating two sections to distinguish 
between ``prisoner'' and ``passenger.'' Several commenters recommend 
that all escorts (armed and unarmed) are trained and certified law 
enforcement officers and that this section should also apply to unarmed 
escorts. Another commenter recommends that the FAA establish a policy 
for restraints on prisoners.
    One commenter suggests that the FAA develop regulations governing 
carriage of persons under escort by unarmed officers. Another commenter 
recommended that the FAA use consistent definitions to parallel 
definitions used by other agencies.
    FAA response: The FAA finds no need to create two sections based on 
differences between the terms ``prisoners'' and ``passengers.'' The FAA 
decided to use the term ``prisoners'' in the final rule, because it is 
more appropriate. We note that the word ``prisoners'' is used for any 
person who is under armed escort (except for voluntary protective 
escort) even though the escorting agency may use another term, such as 
``detainee.'' Additionally, the FAA determined that since all armed 
escorts must be trained and certified law enforcement officers the term 
used in this section must be ``officers,'' rather than ``escorts.''
    Paragraph (a) now more clearly states the applicability of this 
section, and expressly excludes some persons and situations. For 
instance, the Immigration and Naturalization Service (INS) escorts 
detainees, some of whom require armed escort and therefore are subject 
to Sec. 108.221. Many INS detainees are not violent and are not charged 
with or convicted of a crime, however, and do not require an armed 
escort. In that case this section does not apply. The INS escort may be 
armed in connection with other duties, and if so would be subject to 
the requirements of Sec. 108.219, but the deportee would not be in hand 
restraints or otherwise be subject to Sec. 108.221.
    With regard to the comment requesting the requirements for unarmed 
escorts, this issue was not addressed in the NPRM, and is beyond the 
scope of this rulemaking.
    A change was made in the final rule regarding the use of restraints 
on prisoners. Hand restraints are required in the final rule; however, 
the FAA has determined that it is not necessary to require that each 
prisoner have these hand restraints attached to a locked waist 
restraint. While the final rule provides in Sec. 108.221(g) a standard 
indicating the extent of the restraint, the FAA prefers to allow the 
aircraft operator and the law enforcement officers to work out the 
specifics of the types of hand restraints to use.
    With respect to the comments about the proposed definitions for 
``high risk'' and ``low risk,'' the commenters offered no alternative 
definitions. The proposed definitions were created with input from the 
CWTF. After further consideration, however, it appears that the 
proposed definition of ``high risk'' may have been too stringent. It 
may have unduly limited the ability of law enforcement agencies to 
classify as ``low risk'' prisoners whom the agency believes, based on 
its review of the prisoners' histories and circumstances, do not 
warrant the more stringent limitations placed on high risk prisoners. 
Therefore the definition of ``high risk prisoner'' has been changed to 
mean both ``exceptional'' escape risk,

[[Page 37346]]

and charged with, or convicted of, a violent crime.
    We have also added to paragraph (c)(2) that, if authorized by the 
FAA, more than one high risk prisoner may be carried on an aircraft. 
There are some circumstances where an aircraft operator and a law 
enforcement agency work out procedures to do so in a safe and secure 
manner. In such a case, new paragraph (d)(ii) requires that a minimum 
of at least one armed law enforcement officer for each prisoner and one 
additional armed law enforcement officer shall control the prisoners. 
This commonly is referred to as a ``one-to-one plus one'' escort. No 
other prisoners may be under the control of those armed law enforcement 
officers.
    The FAA would like to clarify that the time restraints referred to 
in Sec. 108.221 are for each segment of the trip. Therefore, if there 
are three flight ``legs'' required for the officer and the prisoner to 
reach their final destination, each ``leg'' must meet the appropriate 
time restraints as provided in this final rule.
    New Sec. 108.221(f)(1) refers to boarding a prisoner before, and 
deplaning the prisoner after, other passengers ``when practicable.'' 
This refers, for instance, to when there are passengers already on the 
aircraft from a previous flight, or when passengers are remaining 
onboard for another flight.

Section 108.223  Transportation of Federal Air Marshals

    Proposal: The FAA proposed in Sec. 108.217 to prohibit divulging 
the identity, seating, and purpose of Federal Air Marshals (FAM's) to 
any person who does not have an operational need-to-know. The onboard 
flight crew will be informed of the presence of any FAM's on a 
designated flight. The FAM's are made aware of all other law 
enforcement personnel flying armed on that flight. However, proposed 
Sec. 108.213 paragraphs (a)(6) and (a)(7), do not require that the air 
carrier notify persons flying armed of the FAM's presence. This section 
has been renumbered as Sec. 108.223 in the final rule.
    Comments: Alaska Airlines, NW, ATA and RAA recommend that all LEO's 
onboard be notified of all other armed LEO's including FAM's.
    FAA response: Active flight crews are informed by both the aircraft 
operator and the FAM(s) of the presence of any FAM(s) onboard a flight. 
A FAM(s) is made aware by the aircraft operator of all other law 
enforcement personnel flying armed on a flight. When a FAM(s) is on a 
flight where an armed LEO is present, a FAM will personally contact the 
armed LEO.
    The FAA recognizes the vital need for coordination with an armed 
LEO when both a FAM and a LEO are onboard the same flight. The aircraft 
operator will notify each LEO of the presence of each other LEO, 
including a FAM. In addition the FAM will personally contact the LEO to 
promote full coordination.
    The final rule continues the current requirement that each aircraft 
operator shall assign the specific seat requested by a FAM who is on 
duty status. The rule clarifies that, if another LEO is assigned to 
that seat or requests that seat, the aircraft operator shall inform the 
FAM. The FAM will coordinate seat assignments with the other LEO. The 
FAA notes that, if it is necessary for the FAM and one or more LEO's to 
coordinate under this section, they will consider each other's 
statutory authority and responsibility in deciding appropriate seating 
assignments.
    Additionally, in this final rule the FAA states the specific 
information requirements placed on armed law enforcement officers will 
not apply to FAM's.

Section 108.225  Security of Aircraft and Facilities

    Proposal: The proposal renumbered current Sec. 108.13 entitled 
``Security of Airplanes and Facilities'' as Sec. 108.219 and placed it 
under new Subpart C, Operations.
    The proposal addressed the current requirement which prohibits 
unauthorized access to aircraft, and also proposed that the air carrier 
prevent access to any area it controls for security purposes. The 
proposal incorporated requirements contained within, and implemented 
via, the security program. Accordingly, it was proposed that the air 
carrier must prevent, rather than prohibit, access to areas controlled 
by the air carrier under an approved airport security program.
    The proposal also included language requiring the air carrier to 
prevent access by unauthorized persons to baggage or cargo tendered for 
transport aboard a passenger aircraft.
    The proposed language required the air carrier to be in compliance 
with proposed Sec. 107.209(b) which regulates the issuance and control 
of airport-approved vehicle identification systems.
    In the final rule, the security measures regarding checked baggage 
appear in Sec. 108.203 and security measures regarding cargo appear in 
Sec. 108.205. In the final rule, proposed Sec. 108.219 is renumbered as 
Sec. 108.225.
    Comments: One commenter states that ``safeguarded'' cargo and 
checked baggage should be changed to ``controlled cargo and checked 
baggage.'' United Express, RAA, UPS, and ATA stated that ``off road'' 
airline vehicles should not be required to display airport ID, just 
airline logos.
    FAA response: The FAA traditionally uses, and has used, the word 
``control,'' or ``controlled,'' relating to these measures, and has 
changed the word ``safeguarded'' to ``controlled.'' However, the FAA 
has decided to place the requirements for handling checked baggage and 
cargo in separate sections. Therefore, proposed Sec. 108.219 paragraphs 
(c), (d), and (e) have been moved to new Secs. 108.203 ``Acceptance and 
screening of checked baggage,'' and 108.205 ``Acceptance and screening 
of cargo.''
    In Notice 97-12 Sec. 108.219 was intended to impose similar 
requirements for both airport operators and aircraft operators 
regarding the responsibility for vehicles within certain areas of the 
airport. It was believed that this requirement would add to the overall 
security of the airport. Having reviewed the comments submitted for 
Notice 97-13, ``Airport Security,'' the FAA agrees that the proposed 
vehicle identification requirements are not necessary at each airport. 
As discussed further in the final rule for part 107, the FAA is 
withdrawing this portion of the proposal.
    In Notice 97-12, the proposed regulatory language in Sec. 108.219 
discussed identification and certification relative to the shipment of 
cargo aboard a passenger aircraft. The FAA has determined the 
requirements for cargo acceptance are better left to the security 
program where they are discussed in detail.
    New Sec. 108.225(c) requires a security inspection of an aircraft 
if access has not been controlled as provided in the security program, 
or as otherwise required in the security program. For instance, there 
are special requirements for inspecting aircraft on certain 
international flights.

Section 108.227  Exclusive Area Agreement

    This section was not proposed in the regulatory language in Notice 
97-12, however, exclusive areas were discussed in the preamble to 
Notice 97-12, and the security measures for exclusive areas were to be 
in the aircraft operator security program under proposed Sec. 108.103 
(b)(1). Exclusive area agreements were directly dealt with under 
proposed Sec. 107.111 in Notice 97-13. The ability of the aircraft 
operator to obtain from an airport operator the responsibility for 
controlling certain

[[Page 37347]]

access has been previously provided in Sec. 107.13 (b), and Notice 97-
13 proposed further requirements.
    This section was added to part 108 to directly provide reference to 
exclusive area agreements. Under this final rule the security measures 
for exclusive area agreements are placed in the airport operator's 
security program. The aircraft operator would be required to list in 
its security plan those locations at which the aircraft operator has an 
exclusive area agreement. The aircraft operator is required under this 
section to carry out its agreement.
    This inclusion of Sec. 108.227 in the final rule does not adversely 
impact any aircraft operator who may have entered into an agreement 
with the airport operator. The aircraft operator will make its copy of 
the agreement available for FAA inspection. The FAA is not requiring 
that the aircraft operator give notice to the FAA that the agreement 
has been terminated. The reason for this decision is because the 
airport operator will have a changed condition to its security program 
both when it enters into an agreement or terminates it, and therefore, 
the FAA will have received notice of these changes through the airport 
operator.
    New Sec. 108.227 (c) provides a compliance due date one year after 
the effective date of the rule for existing exclusive area agreements 
to meet the new Sec. 107.111. This will give aircraft operators and 
airport operators time to change existing agreements to conform to the 
new rules. Any new agreements after the effective date, however, will 
have to meet the new rules.

Section 108.229  Employment History, Verification, and Criminal History 
Records Checks

    Proposal: The FAA published a final rule (63 FR 51204; September 
24, 1998) addressing employment history verifications on individuals 
seeking unescorted access to a SIDA and to individuals performing 
screening functions. The rulemaking was in progress at the time Notice 
97-12 was issued and therefore not addressed.
    FAA response: This final rule includes the Employment History, 
Verification and Criminal History Records Check final rule and corrects 
an oversight that appeared in that final rule (63 FR 51204). Section 
Sec. 108.229(b)(3) clarifies that when an individual has admitted to a 
conviction of a disqualifying crime, the investigative process ends and 
the individual is denied unescorted access and/or the privilege of 
performing any screening functions. Although this was the obvious 
implication of the section and the preamble, it was not clearly stated 
in the rule.
    The FAA also clarified Sec. 108.229 by stating that the section 
only applies to ``locations within the U.S.''
    This added language will not have an economic impact on the 
regulated parties.
    The FAA receives numerous calls requesting clarification on the use 
of automated telephone systems that provide employment information. The 
FAA has contacted several of these companies and found that the 
information being provided comes directly from the past employer.
    These telephone services provide employment information that may be 
used to partially satisfy 14 CFR 108.33 regarding the employment 
history of those individuals seeking certain positions at an airport. 
The automated services provide the employment dates and does so only if 
the person calling has the past employer's company identification 
number and the specifically assigned identification number of the 
individual whose employment information is sought.
    The use of the specifically assigned numbers reflects a level of 
security is being provided to the information contained within the 
system. The security is viewed as a means to protect the information 
from unauthorized changes. Since this method of providing past 
employment information is the ``current state of business'' the FAA 
will accept this method as an adequate means to verify past employment 
dates when the telephone services have security measures in place.
    Therefore, the FAA interpretation of Sec. 108.33(c)(4) includes the 
use of those automated telephone services that require the use of 
special information to access an individual's employment history. No 
language change is deemed necessary for this final rule.

Section 108.231  Airport-approved and Exclusive Area Personnel 
Identification Systems

    Proposal: Notice 97-12 proposed that air carriers establish and 
implement a personnel identification system mirroring the standards for 
accountability of airport-issued identification media. A personnel 
identification system was proposed for flight and cabin crewmembers. 
The proposed system provided for the following: issuance of 
identification media after satisfactory completion of employment 
history and verification checks; and control and accountability 
standards for identification media. Additionally, the system provided a 
means to readily identify the currency of the medium. A method for 
providing the periodic review and re-certification of the 
identification medium for renewal or forfeiture was also needed.
    Comments: Federal Express states that this could require one 
crewmember to have between 50 and 100 badges. A few commenters note 
that this proposal will require the manufacture and re-issuance of 
thousands of ID's at a considerable cost. Federal Express, Northwest, 
United Express, ATA, UPS, and RAA oppose including expiration dates on 
ID's issued to crewmembers and state that this requirement would 
necessitate issuing new badges to personnel. Federal Express suggests 
that establishing control and accountability standards is more 
important than an ID expiration date. All of the commenters request 
that the FAA allow a two-year phase-in period if this measure is 
implemented. Denver Airport supports the accountability that this 
requirement would provide, and supports the use of expiration dates for 
air carriers.
    Continental Airlines comments that the proposed rule does not 
address the need for air carrier ground staff to have identification 
media to meet the proposed requirements of this section. The need for 
ground crews who are permanently stationed at certain airports to have 
the appropriate media exists and is usually dictated by the airport.
    FAA response: The title of this section has been changed to clarify 
that the same requirements apply to ID media issued for use in 
exclusive areas as those issued by aircraft operators to flight crews 
and others who need media at different airports.
    The intent of this proposal was to ensure that aircraft operator ID 
systems that are used by those with unescorted access to the SIDA meet 
the same requirements as systems used by airport operators under part 
107. The same ID medium would be accepted by numerous airports, so the 
aircraft operator would not issue more than one to each person.
    In Notice 97-12, the FAA clearly indicated its intent to mirror the 
standards for accountability that exists for airport-issued 
identification media. The regulatory language did not provide the 
amount of detail contained in part 107. The FAA has chosen to clarify 
the details in this final rule and believes that there will be no 
increased economic impact by adding this clarifying language. The 
intent is to minimize the opportunity for a breach of aircraft operator 
security procedures while in the airport environment.
    The FAA agrees that the new ID requirements may present a challenge 
to

[[Page 37348]]

some aircraft operators and crewmembers, but believes that the 
requirements are necessary to ensure accountability and to minimize the 
opportunity for a breach of aircraft operator security procedures. 
Internal controls and accountability measures taken by the aircraft 
operator relative to identification media will certainly enhance the 
current system. The FAA sees no reason that aircraft operators' ID 
media should have fewer safeguards than airport-issued ID media that 
are used in the same manner.
    The proposal referred to ID media used by cabin and flight crew, 
and these are the majority of personnel who receive such media from 
aircraft operators. However, there may be other aircraft operator 
personnel who travel frequently to various airports and need the 
aircraft operator ID media that will be accepted by airports for use in 
the SIDA. Therefore, the rule refers to a personnel identification 
system. Aircraft operator personnel who work at only one airport 
typically receive the necessary ID medium from the airport operator.
    The FAA agrees that a 2-year phase-in period is reasonable for this 
requirement, and has changed the final rule to allow aircraft operators 
to present a plan to reach full implementation of this requirement.

Section 108.233  Security Coordinators and Crewmembers, Training

    Proposal: Section 108.225 contained in Notice 97-12 has been 
changed to Sec. 108.233 in the final rule. The proposal was based on 
current Sec. 108.23. This section governs security training and 
knowledge of flight crewmembers and security coordinators.
    Comments: Federal Express, UPS, ATA, and RAA state that 
applicability to all ``security related functions'' in proposed 
Sec. 108.225(c) is too broad. These commenters suggest that the phrase 
``appropriate to their job/classification'' be incorporated for 
clarification.
    FAA response: The reference to security-related functions in 
proposed Sec. 108.225(c) was only applicable to ground security 
coordinators. Such persons have important duties, and should be fully 
trained in all security duties with which they are charged. However, 
the FAA has omitted proposed Sec. 108.225(c) because it is unnecessary. 
That paragraph stated that the duty to train applied whether the person 
is a direct employee or a contract employee. It is inherent that the 
responsibility rests with the aircraft operator, regardless if the 
person assigned those duties is an employee or contract employee.

Section 108.235  Training and Knowledge for Persons With Security-
Related Duties

    Proposal: Section 108.227 contained in Notice 97-12 has been 
changed to Sec. 108.235 in the final rule. These requirements are 
largely in current Sec. 108.29(a)(1). As proposed, the section would 
expand personnel training requirements in part 108 to require air 
carriers to train any person performing security functions in 
accordance with the air carrier's standard security program, as well as 
continuing the current requirement that such persons have knowledge of 
these provisions. The FAA proposed that required security training be 
approved by the Administrator.
    Comments: Federal Express, UPS, ATA, and RAA state that 
applicability to all ``security related functions'' in proposed 
Sec. 108.227(a) and (e) is too broad. These commenters suggest that the 
phrase ``appropriate to their job/classification,'' should be 
incorporated for clarification. This comment was provided in response 
to both proposed Sec. Sec. 108.225 and 108.227.
    FAA response: The FAA requirements may periodically change via 
security program amendments or via the shorter notice of security 
directives. In either case, the requirements may involve anyone 
employed by the aircraft operator. In order to properly carry out any 
security-related function, the FAA believes that everyone, regardless 
of his or her primary job function for the aircraft operator, must be 
trained. The statement is broad for this reason. That training may not 
necessarily be formal classroom training, depending on the security 
duties involved. This rule leaves considerable latitude to the aircraft 
operator to determine what format the training will take.
    The FAA does not agree that language addressing an individual's job 
or classification is needed. It seems plausible for an aircraft 
operator employee to have a security-related duty that is not clearly 
reflected in his or her formal job/classification position.

Subpart D

Section 108.301  Contingency Plan

    Proposal: The FAA proposed in Sec. 108.307 to require air carriers 
to adopt contingency measures in their security programs and implement 
them when directed by the Administrator. The FAA also proposed that air 
carriers test these contingency plans to ensure that all parties 
involved are aware of their responsibilities and that information 
contained in the plan is current. Furthermore, it was proposed to 
require air carriers to participate in any airport operator's sponsored 
exercise to ensure that they understand how to respond to incidents at 
each airport. Contingency plans contain security measures that can be 
immediately and flexibly applied to counter threats that arise quickly. 
The ``lessons learned'' from the Persian Gulf War threat, are a case-
in-point on the need to retain this flexible response plan. 
Furthermore, it is an ICAO standard that the member states ensure that 
contingency plans are developed and tested.
    Comments: Four commenters, TWA, UPS, ATA and RAA, state that 
contingency plans should be deleted entirely. Three of these four 
commenters state that the air carrier should not have to conduct and 
review exercises of its contingency plan if it participates in each 
airport operator's exercise. Two other commenters, AS and FedEx, 
support contingency plans, but do not think they should be addressed in 
the rule.
    FAA response: The regulatory language pertaining to aircraft 
operator contingency plans has been moved to Sec. 108.301 in the final 
rule.
    The FAA will not delete this section, because it believes that 
contingency planning supports crisis management. The FAA and industry 
jointly developed the current contingency plan to ensure that the FAA, 
airport operators, and aircraft operators are able to respond on short 
notice to civil aviation threats. A well-exercised contingency plan 
ensures a timely response to these threats with temporary measures. The 
ASAC supported the codification of contingency plans.
    The FAA has determined that individual testing, in isolation from 
the airport operator's testing, will not provide enough added benefit 
to offset the costs that might be incurred by the aircraft operator. 
Therefore, the FAA has decided not to include the proposed requirement 
for aircraft operators to independently conduct reviews and exercises 
of their contingency plans in the final rule. The final rule requires 
only that the aircraft operator participate in exercises sponsored by 
the airport. Such exercises are relatively low cost but ensure that the 
different entities understand their roles, know to whom to turn for 
assistance, and have current information, such as how to contact 
various agencies that may render assistance in an emergency.
    Instead the details will be contained in the security program. The 
FAA has determined that it may be beneficial to

[[Page 37349]]

provide for reasonable alternatives, e.g., if measures were carried out 
in an actual event, to substitute elements of that incident for some 
portion or all of the exercises required within this section. What is 
determined to be a reasonable alternative will evolve as examples that 
come to the attention of the FAA on a case-by-case basis.
    The FAA agrees with the commenters that in the interest of 
security, the security-sensitive details of the contingency plan cannot 
be included in a public regulation.

Section 108.303  Bomb or Air Piracy Threats

    Proposal: Notice 97-12 proposed to expand the requirements in 
current Sec. 108.19. To ensure proper coordination, the FAA proposed to 
include the existing air carrier security program requirement that the 
air carrier notify the airport operator immediately of a specific and 
credible bomb threat to its aircraft or ground facilities.
    Additionally, the air carrier would be required to deplane all 
passengers from a specifically threatened aircraft to ensure their 
safety and a more effective search of the aircraft.
    Comments: Several commenters submitted recommendations on how 
certain emergencies should be handled.
    FAA response: The FAA will retain the proposed regulatory language 
in the final rule. The submitted comments are security specific and 
will not be addressed in this public rule.

Section 108.305  Security Directives and Information Circulars

    Proposal: To ensure that Security Directives (SD) are received 
promptly, the FAA proposed to require air carriers to verbally 
acknowledge receipt of SD's immediately, and to follow up with written 
confirmation within 24 hours. The FAA also proposed that the air 
carrier submit to its Principal Security Inspectors (PSI) copies of 
written measures/implementing procedures issued to their stations. This 
latter requirement would assist the FAA in determining that the air 
carrier fully understands the security requirements in the SD and that 
the proposed implementation is correct.
    Also proposed in Notice 97-12, within 72 hours after receipt of the 
SD, unless stated otherwise, the air carrier would give the FAA the 
implementation methods that are either in effect or will be in effect 
when the SD is implemented. In response, the FAA would either approve 
the air carrier's proposed alternative measures, or notify the air 
carrier to modify the alternative measures to comply with the 
requirements of the SD, within 48 hours after receiving proposed 
alternative measures.
    Comments: Six commenters, AS, UPS, FedEx, United Express, RAA, and 
ATA, state that the requirement for submitting a written description 
within 72 hours of the issuance of a SD precludes the timely processing 
and implementation of this information. The commenters encourage the 
FAA to provide as much advance notice of potential SD issuance as 
possible. Additionally, the commenters support the sharing of threat 
information.
    One commenter, RAA, strongly recommends a thorough briefing by the 
FAA to the affected carriers within an immediate timeframe of 12 to 24 
hours after issuance of a SD, and urges the FAA to provide as much 
information on the threat as possible.
    FAA response: Given that SD's are put in place when the FAA 
determines that additional security measures are necessary to respond 
to a threat assessment or to a specific threat against civil aviation, 
fast and thorough implementation is extremely important. The FAA 
supports the communication between the aircraft operators and their FAA 
contacts and believes that this communication appears to be going well 
in most cases. The FAA currently makes every effort to provide as much 
advance notification as possible.
    The FAA found that in some instances, aircraft operators that do 
not receive SD's in a timely manner lose valuable time. The current 24-
hour notification period needs to be shortened. However, the FAA has 
determined that all time requirements will be contained within each 
individual Security Directive. Depending on the individual 
circumstance, different time periods for acknowledging receipt of a SD 
may be acceptable. The final rule does not require the acknowledgement 
be followed up in writing, however. The final rule also omits the 
proposal to require that for each SD the aircraft operator provide the 
written implementing procedures to the FAA. This practice is not 
necessary in each case. The FAA may request copies of these procedures, 
if needed.
    New Sec. 108.305(a) sets out the practice of issuing a SD based 
either on a specific threat against aviation, or on a threat 
assessment. There are times when there is a threat assessment, but it 
is not known whether the specific target may be aviation. At such times 
it may be necessary to order measures to ensure the security of the 
traveling public.
    The FAA also inserted a new paragraph (e) to clarify that aircraft 
operators may comment on SD's by submitting written data, views, or 
arguments to the FAA. Currently, the process entails ongoing verbal 
communications with the Administrator, which will not be discouraged. 
However, the FAA has chosen to add the language in the final rule to 
make it clear that the written comments are also acceptable for stating 
the aircraft operator's views or arguments. Submission of a comment, 
however, will not delay the effective date of the SD. As in the past, 
the FAA expects to continue to receive, and act as appropriate, verbal 
comments on SD's when the exigencies of the situation warrant.

Paperwork Reduction Act

    Information collection requirements pertaining to this final rule 
have been approved by the Office of Management and Budget (OMB) under 
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), and have been assigned OMB Control Number 2120-0655. No 
comments were received on this information collection submission. 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.

International Compatibility

    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 final 
rule 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.

Regulatory Evaluation Summary

    Proposed and final rule changes to Federal regulations must undergo 
several economic analyses. First, Executive Order 12866 directs that 
each Federal agency shall propose or adopt a regulation only upon a 
reasoned determination that the benefits of the intended regulation 
justify its costs. Second, the Regulatory Flexibility Act of 1980, as 
amended in May 1996, requires agencies to analyze the economic effect 
of regulatory changes on small entities. Third, the Office of 
Management and Budget (OMB) directs agencies to assess the effect of 
regulatory changes on international trade.

[[Page 37350]]

    This rule is considered significant under the regulatory policies 
and procedures of the Department of Transportation (44 FR 11034; 
February 26, 1979) but is not considered to have a significant economic 
impact under Executive Order 12866. This rule is a significant action 
because of public interest rather than on the basis of economic 
impacts. This rule is not expected to have a significant impact on a 
substantial number of small entities and will not constitute a barrier 
to international trade. In addition, this rule does not contain Federal 
intergovernmental or private sector mandates. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply. These analyses, available in the docket, are summarized 
below.

Costs

    The total cost of compliance of this rule, over the next 10 years, 
is estimated to be $40 million (or $29 million, discounted, 7 percent) 
in 1998 dollars (rounded). Of the 29 sections amended by the rule, only 
five sections will result in cost impacts. The other 24 sections will 
not impose costs because they contain minor definitional, 
clarification, and procedural changes. They also will codify a number 
of existing practices as contained in the aircraft operator standard 
security program (AOSSP). Those sections that will potentially impose 
costs are discussed below.

Section 108.101--Adoption and Implementation

    The rule changes to this section will increase the number of 
aircraft operators that must adopt and maintain security programs. 
Specifically, section 108.101 will require that the following types of 
aircraft operators adopt and implement security programs:
A Full Security Program
     Applies to any U.S. scheduled passenger or public charter 
passenger operation with an aircraft having a passenger seating 
configuration of more than 60 seats.
     Applies to any U.S. scheduled passenger or public charter 
passenger operation using an aircraft having a seating configuration of 
less than 61 passenger seats when passengers are enplaned from or 
deplaned into a sterile area.
A Partial Program
     Applies to any scheduled passenger or public charter 
operation with an aircraft having a passenger-seating configuration of 
more than 30 and less than 61 seats inclusive that does not enplane 
from or deplane into a sterile area.
     A scheduled passenger or public charter operation with an 
aircraft having a passenger-seating configuration of less than 61 seats 
engaged in operations to, from, or outside the United States that does 
not enplane from or deplane into a sterile area.
A Limited Program
     Applies to any other U.S. operator (such as an all-cargo 
carrier) holding a certificate under part 119 that chooses to have a 
security program. Such an operator shall carry out and meet the 
requirements of Sec. 108.101(e).
A Private Charter Program
     Applies to any U.S. private charter operation (regardless 
of seating configuration) in which passengers are enplaned from or 
deplaned into a sterile area.
    As the result of this rule, an estimated 51 existing operators will 
incur a potential cost of compliance of about $126,500 (or $91,700, 
discounted) over the next 10 years. Multiplying the one-time 
application cost of $239.50 and the recurring staff cost of $224 by the 
number of potentially impacted operators of 51 over the 10-year period 
derived this cost of about $126,500. Similarly, new applicants will 
also be impacted. This evaluation assumes that three to four new 
applicants will file for certification in this carrier or operator 
group annually. This action will result in an estimated potential cost 
of compliance of about $16,200 (or 11,400, discounted) over the next 10 
years. This cost estimate of $16,200 was derived by multiplying the 
one-time application cost of $239.50 and the recurring staff cost of 
$224 by the number of potentially impacted new applicant operators of 
35 (or 3 to 4 annually) over the 10-year period. Thus, the total 
potential cost of compliance (rounded) for this section is estimated to 
be about $142,700 ($126,500 + $16,200). Note: The cost estimates in 
this section and in each of the following sections may not add due to 
rounding.

Section 108.235--Training and Knowledge of Persons With Security-
Related Duties

    The FAA requires extensive training for personnel who perform 
extraordinary security procedures for aircraft operators under part 
108, in accordance with their approved security programs. An instructor 
trained and approved by the Administrator will conduct security 
training. The potential incremental cost impact on this section is 
estimated to be about $14.1 million (or 10.6 million, discounted) over 
the next 10 years. This estimate of $14.1 million was derived in three 
steps. First, adding the cost of training employees ($4.7 million) to 
the cost for an instructor ($464,600) over the 10-year period derived 
in the Initial Aircraft Operator Training cost estimate of $5.2 
million. Second, the cost estimate of $8.9 million for annual aircraft 
operator training requirements was derived by combining the employee 
training cost estimate ($8.1 million) with that for an instructor 
($787,700) over the 10-year period. And last, both of these cost 
components were summed.

Section 108.301--Security Contingency Plan

    This section will require aircraft operators to adopt contingency 
plans developed by the FAA to test them periodically in coordination 
with the respective airport operator testing of contingency plans. 
Based on the informed opinion of FAA security personnel, sixteen hours 
will be required for each test of the contingency plan each year; the 
new revisions to this section will impose an incremental cost of about 
$24 million (or $17 million, discounted) to operators over 10 years.
    This estimate of $24 million to ensure conformity with airport 
plans was derived by a two-step process. The first step estimated the 
one-time cost for ensuring conformity by conducting aircraft operator 
initial review of contingency plans. In the first year (2000) only, 
cost for this step is estimated by multiplying the number of impacted 
aircraft operators (192) by the number of airports involved (25) by the 
number of hours of work required to review plan (16) by the hourly 
salary of aircraft operator security personnel ($28). For example, this 
computation will result in an estimated one-time compliance cost of 
$2,150,400 (192  x  25  x  16  x  $28) for the initial review of 
contingency plans. And, the last step of ensuring conformity consists 
of testing the contingency plan. Over 10 years, cost estimation for 
this step represents multiplying the number of impacted aircraft 
operators (1,920 = 192  x  10) by the number of airports involved (25) 
by the number of hours of work required to test plan (16) by the hourly 
salary of aircraft operator security personnel ($28). For example, this 
computation will result in an estimated compliance cost estimate of 
$21,504,000 (1,920  x  25  x  16  x  $28), over the 10-year period, for 
testing of contingency plans. Thus, the total compliance cost estimate 
for this section was derived by summing the two cost components 
($23,654,400 = $2,150,400 + $21,504,000).

[[Page 37351]]

Section 108.303--Bomb or Air Piracy Threats

    Aircraft operators follow a set of standard procedures, mandated by 
the FAA, in the event that an operation is threatened by an act of 
terrorism (bomb threat, hijacking, etc.). Currently, this does not 
always require that the aircraft be cleared of passengers in the event 
of a terrorist threat. The FAA amends these procedures to require that 
an operator deplane all passengers onboard a threatened aircraft so 
that the appropriate security personnel may conduct a security 
inspection.
    As the result of the anticipated delay imposed during the 
inspection period and associated with complete deplaning and subsequent 
reboarding of passengers and crew, the potential incremental cost of 
compliance for this rule change to section 108.303 is estimated to be 
$1.2 million over the next 10 years (or 850,000, discounted).
    Estimating and summing the estimates for three cost components over 
the next 10 years derived this figure of $1.2 million. The first 
component is Value of Time for Aircraft ($151,500 = 100  x  4.5  x  
$336.75). This estimate represents the number of credible threats (100 
over 10 years) multiplied by the average number of hours an aircraft is 
down due to a threat (4.5) by the cost per hour of downtime ($336.75). 
The second component is Value of Flight Crew Time estimate ($80,640 = 
448  x  4.5  x  $40). This estimate represents the number of aircraft 
flight crew employees delayed by a threat (448 over 10 years) 
multiplied by the average number of hours delayed due to a threat (4.5) 
times the average flight crew employee salary cost per hour ($40.00). 
The third component is the Value of Passenger Time estimate ($979,000). 
This estimate represents the number of passengers delayed by a threat 
(7,770 over 10 years) multiplied by the average number of hours delayed 
due to a threat (4.5) times the passenger value of time per hour ($28).

Section 108.305--Security Directives and Information Circulars

    This revision will require that all aircraft operators develop and 
implement standardized procedures to deal with security directives and 
information circulars issued by the FAA. The affected aircraft operator 
shall specify the method by which the measures in the security 
directive have been implemented by providing the FAA a copy of the 
written measures and implementation procedures when required by the 
Security Directive or upon request by the Administrator. The potential 
incremental cost of this rule change is estimated to be $666,200 (or 
$468,000, discounted). This cost estimate will be imposed, as the 
result of the staff time required processing and responding to a 
directive. Thus, aircraft operators receive on average 30 directives a 
year. This estimate of $666,200 to notify the FAA, including 
acknowledgment and forwarding of results, was derived by combining the 
cost estimates for Staff to Process Directives ($349,400) with that for 
phone calls and faxes ($316,800).

Benefits

    The rules to amend parts 107 and 108 are intended to enhance 
aviation safety for U.S. airports and aircraft operators in ways that 
are not currently addressed. The benefits of the rules will be a 
strengthening of both airport and aircraft operator security by adding 
to their effectiveness. Security is achieved through an intricate set 
of interdependent requirements.
    It would be difficult to separate out any one change or set of 
changes in the rules to amend part 107 or part 108 and identify the 
extent that change or set of changes will have on preventing a criminal 
or terrorist act in the future. Nevertheless, these changes in both 
rules are an integral part of the total program needed by the airport 
operator, the aircraft operators, and the FAA to thwart such incidents.
    It will also be extremely difficult to determine to what extent an 
averted terrorist incident can be credited to either airport operator 
security or to aircraft operator security. Accordingly, the benefits 
from the rules for parts 107 (airport operators) and 108 (aircraft 
operators) have been combined in this benefit-cost analysis. These 
benefits are comprised of the criminal and terrorist incidents that 
these rules are intended to prevent; hence, these benefits will be 
contrasted against the costs of the changes to parts 107 and 108. As 
shown in Table 1, the combined costs (rounded) of parts 107 and 108 sum 
to about $131 million (or $104 million, discounted).

         Table 1.--Cost Summary of Parts 107 and 108 Final Rules
                         [1998 dollars, rounded]
------------------------------------------------------------------------
                                                   Total      Discounted
                                                   costs        costs
------------------------------------------------------------------------
Cost of rule for Part 107.....................        $91.5        $74.9
Cost of rule for Part 108.....................         39.8         29.2
                                               -------------------------
      Total cost of rules.....................        131.3       104.1
------------------------------------------------------------------------
Source: U.S. DOT, FAA, APO-310, June 1999.

    Since 1987, the FAA has initiated rulemaking and promulgated 11 
security-related amendments that have amended both parts 107 and 108. 
The amendments in these two rules combined with the previous 
rulemakings add to the effectiveness of both parts to augment aspects 
of the total security system to help prevent further criminal and 
terrorist activities.
    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 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

[[Page 37352]]

in September 1992 and had presented himself to immigration officials as 
an Iraqi dissident, seeking asylum. Yousef and a group of 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 twelve 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 two 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 twelve United States 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.
    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 by the planned 
and measured steps contained in these rules.
    Based on the above statement, the FAA concludes that these rules 
set forth the best method to provide increased security at the present 
time. The FAA considered to the limited extent possible, the benefits 
of these rules 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 these rules' benefits to be at least equal to 
these rules' costs. This is intended to allow the reader to judge the 
likelihood of benefits of these rules equaling or exceeding their 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.

[[Page 37353]]

Terrorist acts can result in the complete destruction of an aircraft 
with the loss of all onboard. The FAA considers a Boeing 737 as 
representative of a typical airplane flown domestically. The fair 
market value of a Boeing 737 is $16.5 million, and the typical 737 
airplane has 113 seats. It flies with an average load factor of about 
65 percent, which translates into 73 passengers per flight; the 
airplane will also have 2 pilots and 3 flight attendants.
    A terrorist catastrophic event could also result in fatalities on 
the ground. There were 11 such fatalities in the Pan Am 103 explosion 
and 15 in a collision of an AeroMexico airplane with a Piper PA-28 
airplane over Cerritos, California in 1986. However, looking at the 
number of accidents including aircraft covered by these rules and the 
number of fatalities on the ground over the last 10 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 of about $211 million (78 x $2.7 million). The 
discounted cost of these final rules is $104 million, while the 
discounted benefits for each Class I Explosion averted comes to about 
$191 million. Hence, if these rules prevent one Class I explosion, the 
benefits of these rules will exceed their costs. In view of the recent 
history of terrorist incidents in the United States, a potential 
catastrophic loss of at least this magnitude is considered to be 
plausible in the absence of this rule.
    The FAA also used the same set of benefits in two proposed 
rulemakings, Security of Checked Baggage on Flights Within the United 
States and Certification of Screening Companies; all these rulemakings 
have the same goal--to significantly increase the protection to U.S. 
citizens and other citizens traveling on U.S. domestic aircraft 
operator flights from acts of terrorism as well as also increase 
protection for those operating aircraft. Because the combined 
discounted costs of all of these rules exceeds $191 million, the cost 
of one Class I Explosion, the FAA calculated the economic impact and 
the potential averted market disruption sufficient, in combination with 
safety benefits, to justify all these rulemakings.
    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 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. By 1990, enplanements were at the level they were in 1988. 
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 
summation 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 these rules is a benefit.
    The FAA is unable 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 rule. The discounted 
cost of these four rulemakings is $2.3 billion, while the discounted 
benefits for each Class I Explosion averted comes to $191 million. 
Hence, if one Class I Explosion is averted, the present value of losses 
due to market disruption must at least equal $3.1 billion ($3.3 billion 
less $191 million--one Class I Explosion). If two Class I Explosions 
are averted, the present value of losses due to market disruption must 
at least equal $2.9 billion ($3.3 billion less $400 million--two Class 
I Explosions).
    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 a minimum of 13.3 million lost trips would be suffered, in 
combination with the safety benefits of one averted Class I Explosion, 
for the benefits of these rulemakings to equal costs. This represents 
less than 5 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 16.3 and 10.6 million lost trips, 
respectively, would need to occur for the benefits to equal the costs 
of these rulemakings, assuming one 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.
    Table 2 presents combinations of the total number of trips not 
taken as a result of one to four Class I Explosions at alternative 
values per lost trip that would be sufficient to generate

[[Page 37354]]

monetary benefits in excess of the estimated costs of these 
rulemakings.

            Table 2.--Number of Trips Not Taken as a Result of One to Four Class I Explosions Avoided
                                          [For Benefits to Equal Costs]
----------------------------------------------------------------------------------------------------------------
                                                          Assumed net market loss per trip  (in 1998 dollars)
                                                     -----------------------------------------------------------
        Number of Class I explosions avoided               $130  (in           $160  (in           $200  (in
                                                           millions)           millions)           millions)
----------------------------------------------------------------------------------------------------------------
1...................................................               16.3                13.3                10.6
2...................................................               14.8                12.1                 9.6
3...................................................               13.4                10.9                 8.7
4...................................................               11.9                 9.7                9.7
----------------------------------------------------------------------------------------------------------------
Source: FAA, APO-310, June 1999.

    The FAA stresses that the range of trips discussed in Table 2 
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 these rulemakings to some estimate 
of the benefit of increased security it will provide as that level of 
security relates to the threat level.
    Based on changes in the domestic security risk, the White House 
Commission recommendation, recent Congressional mandates, and the known 
reaction of Americans to any aircraft operator disaster, the FAA 
believes that pro-active regulation is warranted to prevent terrorist 
acts (such as Class I Explosions) before they occur.

Comparison of Costs and Benefits

    This rule, combined with the part 107 rule, will cost $131 million 
($104 million, discounted) over 10 years. This cost needs to be 
compared to the possible tragedy that could occur if a bomb or some 
other incendiary device was to get onto an airplane and cause an 
explosion. Recent history not only points to Pan Am 103's explosion 
over Lockerbie, Scotland, but also the potential of up to 12 American 
airplanes being blown up in Asia in early 1995.
    Since the cost of a Class I Explosion on a large domestic airplane 
is approximately $272 million, coupled with the relative low cost of 
compliance ($131 million), this rule (and the rule for part 107) will 
need to prevent one Class I Explosion over the next 10 years in order 
for quantified benefits to exceed costs. In view of the recent history 
of terrorist incidents in the United States, a potential catastrophic 
loss of at least this magnitude is considered to be plausible in the 
absence of this rule.

Final Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 establishes ``as a principle 
of regulatory issuance that agencies shall endeavor, consistent with 
the objective of the proposed rule and of applicable statutes, to fit 
regulatory and informational requirements to the scale of the business, 
organizations, and governmental jurisdictions subject to regulation.'' 
To achieve that principle, the Act requires agencies to solicit and 
consider flexible regulatory proposals or rules and to explain the 
rationale for their actions. The Act covers a wide-range of small 
entities, including small businesses, not-for-profit organizations and 
small governmental jurisdictions.
    Agencies must perform a review to determine whether a proposed or 
final rule will have a significant economic impact on a substantial 
number of small entities. If the determination is that it will, the 
agency must prepare a regulatory flexibility analysis (RFA) as 
described in the Act.
    However, if an agency determines that a proposed or final rule is 
not expected to have a significant economic impact on a substantial 
number of small entities, section 605(b) of the 1980 act provides that 
the head of the agency may so certify and an RFA is not required. The 
certification must include a statement providing the factual basis for 
this determination, and the reasoning should be clear.
    The Small Business Administration has defined small business 
entities relating to aircraft operators (Standard Industrial Codes 4512 
and 4522) required to comply with part 108 as entities comprising 1,500 
or fewer employees. These small entities include: (1) Scheduled 
aircraft operators whose fleet consists primarily (if not entirely) of 
aircraft with more than 60 passenger seats, (2) Other scheduled 
aircraft operators whose fleet consists primarily (if not entirely) of 
aircraft with less than 60 passenger seats (e.g., commuter operators 
and small majors/nationals types), and (3) Unscheduled aircraft 
operators. Unscheduled operators include primarily air taxi and charter 
types. These types of operators generally operate aircraft with less 
than 60 passenger seats.
    The final rule will potentially impact small U.S. aircraft 
operators engaged in charter services and selected helicopter 
operators. These aircraft operators are engaged in services under parts 
121 and 135. An examination of small entities under each of these 
parts, by size of aircraft, will be discussed by each amended change to 
a section as follows. Multiplying them by a capital recovery factor of 
.14238 [10 years, 7 percent], has annualized the non-annual costs of 
the rule.
    For purposes of this evaluation, a significant economic impact 
refers to one percent of the annual median revenue ($222,200, at the 
50th percentile, in 1998 dollars) of the small part 121 scheduled 
aircraft operators subject to part 108 requirements. In addition, a 
significant economic impact on unscheduled part 135 operators (2,718) 
refers to one percent their annual median revenue ($5,700, at the 50th 
percentile). The FAA has identified small operators ranging from 51 to 
2,930 that may be impacted by this definition. Three of the five 
following sections impose potential costs only on scheduled operators. 
And the other two following sections impose costs on both groups of 
scheduled and non-scheduled aircraft operators.

Section 108.101--Adoption and Implementation

    The rule change to Section 108.101 will only affect estimated 51 
small aircraft operators. This estimate of 51 includes: 15 non-
scheduled domestic service operators with greater than 60 seats, 11 
scheduled international service

[[Page 37355]]

operators with fewer than 31 seats, and 25 non-scheduled international 
service operators (including air taxi operations). The rule change to 
this section will impose an annualized cost of compliance estimate of 
$288 for each of the 51 aircraft operators. Employing two steps derived 
the estimate of $288: First, by dividing the discounted cost of 
compliance estimate for this section ($103,100) by the number of 
potentially impacted aircraft operators (51). This calculation results 
in a discounted 10-year per entity cost estimate of $2,022. And last, 
the cost estimate of $2,022 was multiplied by the 10-year (7%) capital 
recovery factor of 0.14238. This same procedure was used for each of 
the following sections. This section of the rule will primarily impact 
small non-scheduled operators (40).
    Given the nature of their operations (namely, private charters) and 
the size of their aircraft, each of these aircraft operators is 
considered to be a small entity. That is, each of these operators is 
assumed to have less than 1,500 employees. This same assessment applies 
equally to each of those aircraft operators discussed in the following 
sections, unless otherwise stated.

Section 108.235--Training and Knowledge of Persons with Security-
related Duties

    The rule change to Section 108.235 will affect an estimated 2,930 
small aircraft operators. This estimate of 2,930 includes: 74 scheduled 
operators with between 31 and 60 passenger seats, 131 scheduled 
operators with less than 31 passenger seats, 15 non-scheduled operators 
with more than 60 passenger seats, and 2,710 non-scheduled operators 
with less than 61 passenger seats. This rule change to section 108.235 
will impose an annualized cost of compliance estimate of $517 for each 
of the 2,930 small aircraft operators. This section of the rule will 
primarily impact non-scheduled operators (2,725).

Section 108.301--Contingency Plans

    The rule change to Section 108.301 will affect an estimated 172 
(192 less 20 large aircraft operators) small U.S. aircraft operators. 
This will impose an annualized cost of compliance estimate of $12,691 
for each of the 172 small operators that will be affected by this 
section. This section of the rule will only impact domestic scheduled 
aircraft operators, regardless of the size of their aircraft (172).

Section 108.303--Bomb or Piracy Threats

    The rule change to Section 108.303 will affect all 172 small U.S. 
aircraft operators. This rule change to section 108.303 will impose an 
annualized cost of compliance estimate of $629 for each of the 172 
small aircraft operators.

Section 108.305--Information Circulars

    The rule change to Section 108.305 will affect an estimated 172 
U.S. aircraft operators. This rule change to section will impose an 
annualized cost of compliance of $347 for each of the 172 small 
operators that will be affected by this section.
    The total annualized cost of compliance for each of the scheduled 
operators is expected to be nearly $14,470 and about $800 for each of 
the non-scheduled operators. Since the total annualized cost of 
compliance of about $14,470 is less than the significant economic 
impact amount of $222,200, this rule will not impose a significant 
economic impact on a substantial number of scheduled small entities. 
Similarly, the rule is not expected to impose a significant economic 
impact on a substantial number of small non-scheduled operators, since 
the annualized cost of compliance (about $800) for each operator will 
not exceed the significant economic impact amount ($5,700). In view of 
the aforementioned cost impact discussion and pursuant to the 
Regulatory Flexibility Act [5 U.S.C. 605(b)], the FAA certifies with 
reasonable certainty that the final rule will not impose a significant 
economic impact on a substantial number of small entities.

International Trade Impact Statement

    In accordance with the Office of Management and Budget memorandum 
dated March 1983, federal agencies engaged in rulemaking activities are 
required to assess the effects of regulatory changes on international 
trade.
    The rule will have no impact on the competitive posture of either 
U.S. aircraft operators doing business in foreign countries or foreign 
aircraft operators doing business in the United States. This assessment 
is based on the fact that the rule will not have a significant economic 
impact on any of the potentially impacted operators. Most of the 
requirements imposed by this rule are aimed at strengthening the 
requirements of aircraft operators with existing full and partial 
security programs. However, this rule will require scheduled passenger 
or public charter aircraft operators, with more than 60 passenger 
seats, to adopt and implement full security programs. In addition, this 
rule will require those scheduled passenger or public charter aircraft 
operators, with less than 61 passenger seats, to adopt and implement 
security programs prior to enplaning or deplaning passengers into 
sterile areas at airports. Private charter aircraft operators will have 
to comply with a similar requirement. Those aircraft operators who do 
not routinely deplane or enplane passengers into sterile areas at 
airports will be the least impacted by this rule. Such operators will 
only have a partial security program. When engaged in foreign travel, 
these operators usually fly from the U.S. to a foreign destination and 
return. These operators do not have aircraft based in foreign countries 
for flights to the U.S. and other foreign countries. Thus, neither 
domestic nor foreign aircraft operators will be affected 
disproportionately by these new requirements. These new requirements, 
therefore, will not cause a competitive trade disadvantage for U.S. 
aircraft operators operating overseas or for foreign aircraft operators 
operating in the United States.

Federalism Implications

    The FAA has analyzed this final rule under the principles and 
criteria of Executive Order 13132, Federalism. There are two sections 
that have an impact on the States, Sec. 108.219, Carriage of accessible 
weapons, and Sec. 208.221, Carriage of prisoners under the control of 
armed law enforcement officers. State and local law enforcement 
officers at times have a need to travel armed and to escort prisoners. 
The FAA has consulted extensively with representatives of State and 
local law enforcement agencies. In 1992 the carriage of Weapons Task 
Force was created as a committee within the Aviation Security Advisory 
Committee. The Task Force includes representatives from Federal, State, 
and local law enforcement, as well as aircraft operators and airport 
operators. Since that time the Task Force has met on many occasions. 
Their work includes a model training program developed in 1994 for the 
carriage of weapons and escort of prisoners, which most Federal and 
State agencies now use to train their personnel. The proposals in 
Notice 97-12 were based largely on Task Force recommendations, and the 
FAA continues to consult with them on these issues. The rules as 
adopted require little change from the practices that have been in 
place since the mid 1990's.
    Accordingly, 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

[[Page 37356]]

levels of government. Therefore, the FAA has determined that this final 
rule does not have federalism implications.

Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995, 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 by State, local, and tribal governments, 
in the aggregate, or by the private sector, of $100 million or more 
(adjusted annually for inflation) in any one year. In 1998 dollars, 
this estimate of $100 million translates into $105 million using the 
GDP implicit price deflators for 1995 and 1998. Section 204(a) of the 
Act, Title 2 of the United States Code 1534(a), requires the Federal 
agency to develop an effectiveness process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed or final rule ``significant intergovernmental 
mandate.'' A significant intergovernmental mandate under the Act is any 
provision in a Federal agency regulation that will impose an 
enforceable duty upon State, local, and tribal governments, in the 
aggregate, of $100 million (adjusted annually for inflation) in any one 
year. For the purpose of this evaluation, this estimate expressed in 
1998 dollars translates into $105 million. Section 203 of the Act, 
Title 2 of the United States Code 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 any affected small governments to 
provide input in the development of rules.
    Based on the evaluation and impacts reported herein, the final rule 
is not expected to meet the $100 million per year cost threshold ($105 
million, in 1998 dollars). Consequently, it would not impose a 
significant cost on or uniquely affect small governments. Therefore, 
the requirements of Title II of the Unfunded Mandates Reform Act of 
1995 do not apply to the final rule.

Environmental Analysis

    Federal Aviation Administration Order 1050.1D defines FAA actions 
that may be categorically excluded from preparation of a National 
Environmental Policy Act (NEPA) environmental assessment or 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j), this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of the rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA) and Public Law 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that the final rule is not a major regulatory action under the 
provisions of the EPCA.

Distribution/Derivation Tables

    The following distribution table is provided to illustrate how the 
current regulation relates to the revised part 108, and the derivation 
table identifies how the revised part 108 relates to the current rule.

                           Distribution Table
------------------------------------------------------------------------
                Old Section                          New Section
------------------------------------------------------------------------
108.1(a)..................................  108.1(a).
108.1(b)..................................  Removed.
108.3.....................................  108.3.
108.4.....................................  108.7.
108.5(a)(1) and (2).......................  108.101(a)(1) and (2).
108.5(a)(3)...............................  108.101(c)(1).
108.5(a)(4)...............................  108.101(d)(3).
108.5(b)..................................  108.101(d)(2) and (e).
108.7(a)..................................  108.103(a).
108.7(b)..................................  108.103(c).
108.7(c)..................................  108.103(b).
108.9(a)..................................  108.201(e).
108.9(b)..................................  108.201(d) and 108.203(d).
108.9(c)..................................  108.201(b).
108.9(d)..................................  108.201(g).
108.10(a)(1)..............................  108.215(b) and (c).
108.10(a)(2)..............................  108.215(c).
108.10(b) and (c).........................  108.215(b) and (c).
108.11(a).................................  108.219(a)and (b).
108.11(a)(4)..............................  108.223(e).
108.11(b).................................  108.219(a) and (b).
108.11(c) and (d).........................  108.203(e).
108.11(e).................................  108.219(c).
108.11(f).................................  Removed.
108.13 (introductory text)................  108.225 (introductory text).
108.13(a).................................  108.225(b).
108.13(b) (first clause)..................  108.203.
108.13(b) (second clause).................  Removed.
108.13(c).................................  108.203(c)(1) and
                                             108.205(b)(1).
108.13(d).................................  108.225(c).
108.14(a)-(c).............................  108.223(b)-(d).
108.15(a) and (b).........................  108.217(a) and (b).
108.17(a).................................  108.209(a).
108.17(a)(1)..............................  Removed.
108.17(a)(2) and (3)......................  108.209(a)(1) and (2).
108.17(a)(4)..............................  Removed.
108.17(a)(5)..............................  108.209(a)(3).
108.17(b)-(d).............................  108.209(b)-(d).
108.17(e).................................  108.211(b) and 108.209(e).
108.17(f)-(h).............................  108.209(f)-(h).
108.18(a)-(c).............................  108.305(b)-(d).
108.18(d).................................  108.305(f).
108.19(a) and (b).........................  108.303(a) and (b).
108.19(c).................................  108.303(d).
108.20....................................  108.211(a).
108.21 introductory text..................  108.221(a)(1).
108.21(a)(1)..............................  108.219(a)(1).
108.21(a)(2)..............................  108.221(e)(1).
108.21(a)(3)..............................  108.221(d)(3).
108.21(a)(4)..............................  Removed.
108.21(a)(5)..............................  108.221(d)(1) and (2).
108.21(a)(6)(i)...........................  Removed.
108.21(a)(6)(ii)..........................  108.221(e)(3).
108.21(a)(7)..............................  108.221(f).
108.21(a)(8)..............................  108.221(f).
108.21(a)(8)..............................  108.221(e)(4).
108.21(b)(1) and (2)......................  108.221(h).
108.21(b)(2) clause on LEOs...............  108.219(c)(1).
108.21(c).................................  108.221(e)(5).
108.21(d).................................  108.219(c)(2).
108.21(e).................................  108.221(a)(2).
108.23(a).................................  108.233(a) and 108.235(a).
108.23(b).................................  108.233(b).
108.25(a).................................  108.105(a).
108.25(b) introductory clause.............  108.105(c).
108.25(b)(1) and (2)......................  108.105(c).
108.25(b)(3)..............................  108.105(d).
108.25(c).................................  108.105(b).
108.27....................................  108.5(b).
108.29(a)(1)..............................  108.235(b).
108.29(a)(2)..............................  108.215(b).
108.29(b).................................  108.235(a).
108.31....................................  108.213.
108.33....................................  108.229.
------------------------------------------------------------------------


                            Derivation Table
------------------------------------------------------------------------
                New Section                          Old Section
------------------------------------------------------------------------
108.1(a)(1)-(3)...........................  108.1(a)(1)-(3).
108.1(a)(4)...............................  108.1(a)(5).
108.1(a)(5)...............................  108.1(a)(4).
108.1(b)..................................  New.
108.3.....................................  108.3.
108.5(a)..................................  New.
108.5(b)..................................  108.27.
108.5(c)..................................  New.
108.5(d)..................................  New
108.7.....................................  1108.4.
108.9.....................................  New.
108.101(a)................................  108.5(a)(1) and (2).
108.101(b)................................  New.
108.101(c)(1).............................  108.5(a)(3).
108.101(c)(2).............................  New.
108.101(d)(1).............................  108.5(a)(3).
108.101(d)(2).............................  108.5(b).
108.101(d)(3).............................  108.5(a)(4).
108.101(e)................................  108.5(b).
108.103(a)................................  108.7(a).
108.103(b)................................  108.7(c).
108.103(c)................................  108.7(b).
108.105(a)................................  108.25(a).
108.105(b)................................  108.25(c).
108.105(c)................................  108.25(b)(1) and (2).
108.105(d)................................  108.25(b)(3).
108.201(a)................................  108.9(a).
108.201(b)................................  108.9(c).

[[Page 37357]]

 
108.201(c)................................  107.20.
108.201(d)................................  108.9(b).
108.201(e)(1).............................  108.9(a).
108.201(e)(2).............................  107.21.
108.201(f)(1).............................  107.21(b)(1).
108.201(f)(2).............................  108.11(a).
108.201(f)(3).............................  New.
108.201(g)................................  108.9(d).
108.203(a)................................  108.9(a).
108.203(b)................................  108.13(b), first clause.
108.203(c)................................  108.13(c).
108.203(d)................................  108.9(b).
108.203(e)................................  108.11(c) and (d).
108.203(f)................................  108.11(c).
108.203(g)................................  New.
108.205(a)................................  Intent of 108.9(a).
108.205(b)................................  108.13 introductory text,
                                             (b) first clause, and (c).
108.205(c)................................  108.9(b).
108.207...................................  New.
108.209(a)................................  108.17(a).
108.209(a)(1) and (2).....................  108.17(a)(2) and (3).
108.209(a)(3).............................  108.17(a)(5).
108.209(b)-(h)............................  108.17(b)-(h).
108.211(a)................................  108.20.
108.211(b)................................  108.17(e).
108.213...................................  108.31.
108.215(a)................................  New.
108.215(b)................................  108.10(a)(1) and
                                             108.29(a)(2).
108.215(b)(1) and (2).....................  108.10(b).
108.215(c)................................  108.10(a)(2) and (c).
108.217(a) and (b)........................  108.15(a) and (b).
108.219(a)................................  108.11(a) and (b).
108.219(b)................................  108.11(a) and (b).
108.219(c)................................  108.11(e).
108.219(d)................................  New.
108.221(a)(1).............................  108.21(a).
108.221(a)(2).............................  108.21(e).
108.221(a)(3).............................  New.
108.221(b)................................  New.
108.221(c)................................  New
108.221(d)(1) and (2).....................  108.21(a)(5).
108.221(d)(3).............................  108.21(a)(3).
108.221(e)(1).............................  108.21(a)(2).
108.221(e)(2).............................  New.
108.221(e)(3).............................  108.21(a)(6)(ii).
108.221(e)(4).............................  108.21(a)(8).
108.221(e)(5).............................  108.21(c).
108.221(f)................................  108.21(7).
108.221(g)................................  New.
108.221(h)................................  108.21(b).
108.223(a)................................  108.11(a).
108.223(b)-(d)............................  108.14(a)-(c).
108.223(e)................................  108.11(a)(4).
108.223(f)................................  New.
108.223(g)................................  108.7(c)(4).
108.223(h)................................  New.
108.225 introductory text.................  108.13 introductory text.
108.225(a)................................  New.
108.225(b)................................  108.13(a).
108.225(c)................................  108.13(d).
108.227...................................  New.
108.229...................................  108.33.
108.231...................................  New.
108.233(a)................................  108.23(a).
108.233(b) and (c)........................  108.23(b).
108.235(a)................................  108.23(a).
108.235(b)................................  108.29(a)(1).
108.301...................................  New.
108.303(a)(1) and (2).....................  108.19(a).
108.303(a)(3).............................  New.
108.303(b)................................  108.19(b).
108.303(c)................................  New.
108.303(d)................................  108.19(c).
108.305(a)................................  New.
108.305(b)-(d)............................  108.18(a)-(c).
108.305(e)................................  New
108.305(f)................................  108.18(d).
------------------------------------------------------------------------

List of Subjects in 14 CFR Part 108

    Air carrier, Aircraft, Airmen, Airports, Arms and munitions, 
Explosives, Incorporation by reference, Law enforcement officers, 
Reporting and recordkeeping requirements, Security measures, X-rays.

The Amendment

    In consideration of the foregoing, the Federal Aviation 
Administration revises 14 CFR part 108 to read as follows:

PART 108--AIRCRAFT OPERATOR SECURITY

Subpart A--General
Sec.
108.1   Applicability.
108.3   Definitions.
108.5   Inspection authority.
108.7   Falsification.
108.9   Security responsibilities of employees and other persons.
Subpart B--Security Program
108.101  Adoption and implementation.
108.103   Form, content, and availability.
108.105   Approval and amendments.
Subpart C--Operations
108.201   Screening of persons and accessible property.
108.203   Acceptance and screening of checked baggage.
108.205   Acceptance and screening of cargo.
108.207   Use of metal detection devices.
108.209   Use of X-ray systems.
108.211   Use of explosives detection systems.
108.213   Employment standards for screening personnel.
108.215   Security coordinators.
108.217   Law enforcement personnel.
108.219   Carriage of accessible weapons.
108.221   Carriage of prisoners under the control of armed law 
enforcement officers.
108.223   Transportation of Federal Air Marshals.
108.225   Security of aircraft and facilities.
108.227   Exclusive Area Agreement.
108.229   Employment history, verification, and criminal history 
records checks.
108.231   Airport-approved and exclusive area personnel 
identification systems.
108.233   Security coordinators and crewmembers, training.
108.235   Training and knowledge for persons with security-related 
duties.
Subpart D--Threat and Threat Response
108.301   Contingency plan.
108.303   Bomb or air piracy threats.
108.305   Security Directives and Information Circulars.

    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. 108.1  Applicability.

    (a) This part prescribes aviation security rules governing the 
following:
    (1) The operations of aircraft operators holding operating 
certificates for scheduled passenger operations, public charter 
passenger operations, private charter passenger operations, and other 
aircraft operators adopting and obtaining approval of an aircraft 
operator security program.
    (2) Each person aboard an aircraft operated by an aircraft operator 
described in paragraph (a)(1) of this section.
    (3) Each person at an airport at which the operations described in 
paragraph (a) (1) of this section are conducted.
    (4) Each person who files an application or makes entries into any 
record or report that is kept, made, or used to show compliance under 
this part, or to exercise any privileges under this part.
    (5) Each aircraft operator that receives a Security Directive or 
Information Circular and each person who receives information from a 
Security Directive or Information Circular issued by the Assistant 
Administrator for Civil Aviation Security.
    (b) Except as provided in Sec. 108.105, the authority of the 
Administrator under this part is also exercised by the Assistant 
Administrator for Civil Aviation Security and the Deputy Assistant 
Administrator for Civil Aviation Security, and any individual formally 
designated to act in their capacity. The authority of the Assistant 
Administrator, including matters under Sec. 108.105, may be further 
delegated.


Sec. 108.3  Definitions.

    The definitions in part 107 of this chapter apply to this part. For 
purposes of this part, part 107 of this chapter, and security programs 
under parts 107 and 108 of this chapter, the following definitions also 
apply:
    Aircraft operator means a holder of an air carrier operating 
certificate or an operating certificate under part 119 of this chapter 
that conducts operations described in Sec. 108.101 (a), (b), (c), and 
(e).

[[Page 37358]]

    Aircraft operator security program means a security program 
approved by the Administrator under this part.
    Assistant Administrator means the FAA Assistant Administrator for 
Civil Aviation Security as described in 49 U.S.C. 44932.
    Cargo means 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. Aircraft operator security programs further define the term 
cargo.
    Checked baggage means property tendered by or on behalf of a 
passenger and accepted by an aircraft operator for transport, which is 
inaccessible to passengers during flight. Accompanied commercial 
courier consignments are not classified as checked baggage.
    Passenger seating configuration means the total maximum number of 
seats for which the aircraft is type certificated that can be made 
available for passenger use aboard a flight, regardless of the number 
of seats actually installed, and includes that seat in certain aircraft 
which may be used by a representative of the Administrator to conduct 
flight checks but is available for revenue purposes on other occasions.
    Private charter means any aircraft operator flight--
    (1) For which the charterer engages the total passenger capacity of 
the aircraft for the carriage of passengers; the passengers are invited 
by the charterer; the cost of the flight is borne entirely by the 
charterer and not directly or indirectly by any individual passenger; 
and the flight is not advertised to the public, in any way, to solicit 
passengers.
    (2) For which the total passenger capacity of the aircraft is used 
for the purpose of civilian or military air movement conducted under 
contract with the Government of the United States or the government of 
a foreign country.
    Public charter means any charter flight that is not a private 
charter.
    Scheduled passenger operation means an air transportation operation 
(a flight) from identified air terminals at a set time, which is held 
out to the public and announced by timetable or schedule, published in 
a newspaper, magazine, or other advertising medium.
    Sterile area means a portion of an airport defined in the airport 
security program that provides passengers access to boarding aircraft 
and to which the access generally is controlled by an aircraft operator 
or foreign air carrier through the screening of persons and property in 
accordance with a security program.


Sec. 108.5  Inspection authority.

    (a) Each aircraft operator shall allow the Administrator, at any 
time or place, to make any inspections or tests, including copying 
records, to determine compliance of an airport operator, aircraft 
operator, foreign air carrier, indirect air carrier, or other airport 
tenants with--
    (1) This part, parts 107, 109, 129, and 191 of this chapter and any 
security program approved under those parts; and
    (2) 49 U.S.C. Subtitle VII, as amended.
    (b) At the request of the Administrator, each aircraft operator 
shall provide evidence of compliance with this part and its security 
program, including copies of records.
    (c) The Administrator may enter and be present within secured 
areas, AOA's, and SIDA's without access media or identification media 
issued or approved by an airport operator or aircraft operator, in 
order to inspect or test compliance, or perform other such duties as 
the Administrator may direct.
    (d) At the request of the Administrator and the completion of SIDA 
training as required in a security program, each aircraft operator 
shall promptly issue to a FAA Special Agent access and identification 
media to provide the FAA Special Agent with unescorted access to, and 
movement within, areas controlled by the aircraft operator under an 
exclusive area agreement.


Sec. 108.7  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, access medium, or identification 
medium, or any amendment thereto, under this part.
    (b) Any fraudulent or intentionally false entry in any record or 
report that is kept, made, or used to show compliance with this part, 
or to exercise any privileges under this part.
    (c) Any reproduction or alteration, for fraudulent purpose, of any 
report, record, security program, access medium, or identification 
medium issued under this part.


Sec. 108.9  Security responsibilities of employees and other persons.

    (a) No person may tamper or interfere with, compromise, modify, 
attempt to circumvent, or cause a person to tamper or interfere with, 
compromise, modify, or attempt to circumvent any security system, 
measure, or procedure implemented under this part.
    (b) No person may enter, or be present within, a secured area, AOA, 
SIDA, or sterile area without complying with the systems, measures, or 
procedures being applied to control access to, or presence in, such 
areas.
    (c) No person may use, allow to be used, or cause to be used any 
airport-approved or aircraft operator-issued access medium or 
identification medium that authorizes the access, presence, or movement 
of persons or vehicles in secured areas, AOA's, or SIDA's, in any other 
manner than that for which it was issued by the appropriate authority 
under this part, or part 107 or part 129 of this chapter.
    (d) The provisions of this section do not apply to persons 
authorized by an airport operator, aircraft operator, or foreign air 
carrier in accordance with its security program, or by the 
Administrator to conduct inspections for compliance with this part, 
part 107, or part 129 of this chapter, or 49 U.S.C. Subtitle VII, while 
they are conducting inspections.

Subpart B--Security Program


Sec. 108.101  Adoption and implementation.

    (a) Full program. Each aircraft operator shall carry out Subparts C 
and D of this part and shall adopt and carry out a security program 
that meets the requirements of Sec. 108.103 for any of the following 
operations:
    (1) A scheduled passenger or public charter passenger operation 
with an aircraft having a passenger seating configuration of more than 
60 seats.
    (2) A scheduled passenger or public charter passenger operation 
with an aircraft having a passenger seating configuration of less than 
61 seats when passengers are enplaned from or deplaned into a sterile 
area.
    (b) Private charter program. Each aircraft operator shall carry out 
Sec. Sec. 108.201, 108.207, 108.209, 108.213, 108.215, 108.217, 
108.219, 108.229, 108.233, 108.235, 108.303, and 108.305 and shall 
adopt and carry out a security program that meets the applicable 
requirements of Sec. 108.103 for any private charter operation in which 
passengers are enplaned from or deplaned into a sterile area.
    (c) Partial program--adoption. Each aircraft operator shall carry 
out the requirements specified in paragraph (d) of this section for any 
of the following operations:
    (1) A scheduled passenger or public charter passenger operation 
with an aircraft having a passenger-seating configuration of more than 
30 and less than 61 seats that does not enplane from or deplane into a 
sterile area.

[[Page 37359]]

    (2) A scheduled passenger or public charter passenger operation 
with an aircraft having a passenger-seating configuration of less than 
61 seats engaged in operations to, from, or outside the United States 
that does not enplane from or deplane into a sterile area.
    (d) Partial program--content. For operations described in paragraph 
(c) of this section, the aircraft operator shall carry out the 
following, and shall adopt and carry out a security program that meets 
the applicable requirements of Sec. 108.103(c):
    (1) The requirements of Sec. Sec. 108.215, 108.217, 108.219, 
108.235, 108.301, 108.303, and 108.305.
    (2) Such other provisions of Subparts C and D of this part as the 
Administrator has approved upon request.
    (3) The remaining requirements of Subparts C and D of this part 
when the Administrator notifies the aircraft operator in writing that a 
security threat exists concerning that operation.
    (e) Limited program. The Administrator may approve a security 
program after receiving a request by an aircraft operator, holding a 
certificate under part 119 of this chapter other than one identified in 
paragraphs (a), (b), or (c) of this section. The aircraft operator 
shall--
    (1) Carry out selected provisions of Subparts C and D of this part,
    (2) Carry out Sec. 108.305, as specified in its security program, 
and
    (3) Adopt and carry out a security program that meets the 
applicable requirements of Sec. 108.103(c).


Sec. 108.103  Form, content, and availability.

    (a) General requirements. Each security program shall:
    (1) Provide for the safety of persons and property traveling on 
flights provided by the aircraft operator against acts of criminal 
violence and air piracy, and the introduction of explosives, 
incendiaries, or deadly or dangerous weapons aboard an aircraft.
    (2) Be in writing and signed by the aircraft operator or any person 
delegated authority in this matter.
    (3) Be approved by the Administrator.
    (b) Availability. Each aircraft operator having a security program 
shall:
    (1) Maintain an original copy of the security program at its 
corporate office.
    (2) Have accessible a complete copy, or the pertinent portions of 
its security program, or appropriate implementing instructions, at each 
airport served. An electronic version of the program is adequate.
    (3) Make a copy of the security program available for inspection 
upon request of the Administrator.
    (4) Restrict the distribution, disclosure, and availability of 
information contained in the 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.
    (c) Content. The security program shall include, as specified for 
that aircraft operator in Sec. 108.101, the following:
    (1) The procedures and description of the facilities and equipment 
used to perform screening functions specified in Sec. 108.201 regarding 
persons and their accessible property.
    (2) The procedures and description of the facilities and equipment 
used to comply with the requirements of Sec. 108.203 regarding the 
acceptance and screening of checked baggage.
    (3) The procedures and description of the facilities and equipment 
used to comply with the requirements of Sec. 108.205 regarding the 
acceptance and screening of cargo.
    (4) The procedures and description of the facilities and equipment 
used to comply with the requirements of Sec. 108.207 regarding the use 
of metal detection devices.
    (5) The procedures and description of the facilities and equipment 
used to comply with the requirements of Sec. 108.209 regarding the use 
of x-ray systems.
    (6) The procedures and description of the facilities and equipment 
used to comply with the requirements of Sec. 108.211 regarding the use 
of explosives detection systems.
    (7) The procedures used to comply with the requirements of 
Sec. 108.213 regarding standards for screening personnel.
    (8) The procedures used to comply with the requirements of 
Sec. 108.215 regarding the responsibilities of security coordinators. 
The names of the Aircraft Operator Security Coordinator (AOSC) and any 
alternate, and the means for contacting the AOSC(s) on a 24-hour basis, 
as provided in Sec. 108.215.
    (9) The procedures used to comply with the requirements of 
Sec. 108.217 regarding the requirements for law enforcement personnel.
    (10) The procedures used to comply with the requirements of 
Sec. 108.219 regarding carriage of accessible weapons.
    (11) The procedures used to comply with the requirements of 
Sec. 108.221 regarding carriage of prisoners under the control of armed 
law enforcement officers.
    (12) The procedures used to comply with the requirements of 
Sec. 108.223 regarding transportation of Federal Air Marshals.
    (13) The procedures and description of the facilities and equipment 
used to perform the aircraft and facilities control function specified 
in Sec. 108.225.
    (14) The specific locations where the air carrier has entered into 
an exclusive area agreement under Sec. 108.227.
    (15) The procedures used to comply with the applicable requirements 
of Sec. 108.229 regarding employment history investigations.
    (16) The procedures used to comply with the requirements of 
Sec. 108.231 regarding personnel identification systems.
    (17) The procedures and syllabi used to accomplish the training 
required under Sec. 108.233.
    (18) The procedures and syllabi used to accomplish the training 
required under Sec. 108.235.
    (19) An aviation security contingency plan as specified under 
Sec. 108.301.
    (20) The procedures used to comply with the requirements of 
Sec. 108.303 regarding bomb and air piracy threats.


Sec. 108.105  Approval and amendments.

    (a) Initial approval of security program. Unless otherwise 
authorized by the Assistant Administrator, each aircraft operator 
required to have a security program under this part shall submit its 
proposed security program to the Assistant Administrator for approval 
at least 90 days before the date of intended passenger operations. The 
proposed security program shall meet the requirements applicable to its 
operation as described in Sec. 108.101. Such requests will be processed 
as follows:
    (1) The Assistant Administrator, within 30 days after receiving the 
proposed aircraft operator security program, will either approve the 
program or give the aircraft operator written notice to modify the 
program to comply with the applicable requirements of this part.
    (2) The aircraft operator may either submit a modified security 
program to the Assistant Administrator for approval, or petition the 
Administrator to reconsider the notice to modify within 30 days of 
receiving a notice to modify. A petition for reconsideration shall be 
filed with the Assistant Administrator.
    (3) The Assistant Administrator, upon receipt of a petition for 
reconsideration, 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

[[Page 37360]]

directing the Assistant Administrator to withdraw or amend the notice 
to modify, or by affirming the notice to modify.
    (b) Amendment requested by an aircraft operator. An aircraft 
operator may submit a request to the Assistant Administrator to amend 
its security program as follows:
    (1) The request for an amendment 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.
    (2) Within 30 days after receiving a proposed amendment, the 
Assistant Administrator, in writing, either approves or denies the 
request to amend.
    (3) An amendment to an aircraft operator 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.
    (4) Within 30 days after receiving a denial, the aircraft operator 
may petition the Administrator to reconsider the denial. A petition for 
reconsideration shall be filed with the Assistant Administrator.
    (5) 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 affirm the denial.
    (6) Any aircraft operator may submit a group proposal for an 
amendment that is on behalf of it and other aircraft operators that co-
sign the proposal.
    (c) Amendment by the FAA. If safety and the public interest require 
an amendment, the Assistant Administrator may amend a security program 
as follows:
    (1) The Assistant Administrator notifies the aircraft operator, in 
writing, of the proposed amendment, fixing a period of not less than 30 
days within which the aircraft operator may submit written information, 
views, and arguments on the amendment.
    (2) After considering all relevant material, the Assistant 
Administrator notifies the aircraft operator of any amendment adopted 
or rescinds the notice. If the amendment is adopted, it becomes 
effective not less than 30 days after the aircraft operator receives 
the notice of amendment, unless the aircraft operator petitions the 
Administrator to reconsider no later than 15 days before the effective 
date of the amendment. The aircraft operator 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 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 Assistant Administrator to 
withdraw or amend the amendment, 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, without the prior notice and comment procedures 
in paragraph (c) of this section, effective without stay on the date 
the aircraft operator receives notice of it. In such a case, the 
Assistant Administrator will incorporate in the notice a brief 
statement of the reasons and findings for the amendment to be adopted. 
The aircraft operator may file a petition for reconsideration under 
paragraph (c) of this section; however, this does not stay the 
effective date of the emergency amendment.

Subpart C--Operations


Sec. 108.201  Screening of persons and accessible property.

    (a) General requirements. Each aircraft operator shall use the 
facilities, equipment, and procedures described in its security program 
to prevent or deter the carriage of any explosive, incendiary, or 
deadly or dangerous weapon on or about each individual's person or 
accessible property before boarding an aircraft or entering a sterile 
area.
    (b) Screening of persons and accessible property. Except as 
provided in its security program, each aircraft operator shall use the 
procedures included, and the facilities and equipment described, in its 
security program for detecting explosives, incendiaries, and deadly or 
dangerous weapons to inspect each person entering a sterile area at 
each preboard screening checkpoint in the United States for which it is 
responsible, and to inspect all accessible property under that person's 
control.
    (c) Submission to screening. No person may enter a sterile area 
without submitting to the screening of his or her person and accessible 
property in accordance with the procedures being applied to control 
access to that area under this section.
    (d) Refusal to transport. Each aircraft operator shall deny entry 
into a sterile area and shall refuse to transport--
    (1) Any person who does not consent to a search or inspection of 
his or her person in accordance with the screening system prescribed in 
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 this section.
    (e) Explosive, incendiary, deadly or dangerous weapon: 
Prohibitions. (1) Except as provided in Sec. Sec. 108.219, 108.221, and 
108.223, no aircraft operator may permit any person to have an 
explosive, incendiary, or deadly or dangerous weapon, on or about the 
individual's person or accessible property when onboard an aircraft.
    (2) Except as provided in paragraph (f) of this section, no person 
may have an explosive, incendiary, or deadly or dangerous weapon, on or 
about the individual's person or accessible property--
    (i) When performance has begun of the inspection of the 
individual's person or accessible property before entering a sterile 
area;
    (ii) When entering or in a sterile area; or
    (iii) When attempting to board or onboard an aircraft identified in 
Sec. 108.101.
    (f) Explosive, incendiary, deadly or dangerous weapon: Exceptions. 
The provisions of paragraph (d)(2) of this section with respect to 
firearms and weapons does not apply to the following:
    (1) Law enforcement personnel required to carry a firearm or other 
weapons while in the performance of their duty at the airport.
    (2) Persons authorized to carry a weapon in accordance with 
Sec. Sec. 108.219, 108.221, 108.223, or 129.27.
    (3) Persons authorized to carry a weapon in a sterile area under a 
security program.
    (g) Staffing. Each aircraft operator shall staff its security 
screening checkpoints with supervisory and non-supervisory personnel in 
accordance with the standards specified in its security program.

[[Page 37361]]

Sec. 108.203  Acceptance and screening of checked baggage.

    (a) General requirements. Each aircraft operator shall use the 
procedures, facilities, and equipment described in its security program 
to prevent or deter the carriage of unauthorized explosives or 
incendiaries on board aircraft in checked baggage.
    (b) Acceptance. Each aircraft operator shall ensure that checked 
baggage carried in the aircraft is received by its authorized aircraft 
operator representative.
    (c) Control. Each aircraft operator shall use the procedures in its 
security program to control checked baggage that it accepts for 
transport on an aircraft, in a manner that:
    (1) Prevents the unauthorized carriage of any explosive or 
incendiary aboard the aircraft.
    (2) Prevents access by persons other than an aircraft operator 
employee or its agent.
    (d) Refusal to transport. Each aircraft operator shall refuse to 
transport any person's checked baggage or property if the person does 
not consent to a search or inspection of that checked baggage or 
property in accordance with paragraph (a) of this section.
    (e) Firearms in checked baggage. No aircraft operator may knowingly 
permit any person to transport, nor may a person transport or offer for 
transport in checked baggage:
    (1) Any loaded firearm(s);
    (2) Any unloaded firearm(s) unless--
    (i) The passenger declares to the aircraft operator, either orally 
or in writing before checking the baggage that any firearm carried in 
the baggage is unloaded;
    (ii) The firearm is carried in a hard-sided container;
    (iii) The container in which it is carried is locked, and only the 
person checking the baggage retains the key or combination; and
    (iv) The baggage containing the firearm is carried in an area, 
other than the flightcrew compartment, that is inaccessible to 
passengers;
    (3) Any unauthorized explosive or incendiary.
    (f) Loaded firearm. For the purpose of this section, a loaded 
firearm means a firearm, which has a live round of ammunition, or any 
component thereof, in the chamber or cylinder or in a magazine inserted 
in the firearm.
    (g) Ammunition. This section does not prohibit the carriage of 
ammunition in checked baggage or in the same container as a firearm. 
Title 49 CFR part 175 provides additional requirements governing 
carriage of ammunition on aircraft.


Sec. 108.205  Acceptance and screening of cargo.

    (a) General requirements. Each aircraft operator shall use the 
procedures, facilities and equipment described in its security program 
to prevent or deter the carriage of unauthorized explosives or 
incendiaries on board a passenger aircraft in cargo.
    (b) Control. Each aircraft operator shall use the procedures in its 
security program to control cargo that it accepts for transport on an 
aircraft in a manner that:
    (1) Prevents the carriage of any unauthorized explosive or 
incendiary aboard the aircraft.
    (2) Prevents access by persons other than an aircraft operator 
employee or its agent.
    (c) Refusal to transport. Each aircraft operator shall refuse to 
transport any cargo if the shipper does not consent to a search or 
inspection of that cargo in accordance with paragraph (a) of this 
section.


Sec. 108.207  Use of metal detection devices.

    (a) No aircraft operator may use a metal detection device within 
the United States or under the aircraft operator's operational control 
outside the United States to inspect persons, unless specifically 
authorized under a security program under this part. No aircraft 
operator may use such a device contrary to its security program.
    (b) Metal detection devices shall meet the calibration standards 
established by the FAA.


Sec. 108.209  Use of X-ray systems.

    (a) No aircraft operator may use any X-ray system within the United 
States or under the aircraft operator's operational control outside the 
United States to inspect accessible property or checked baggage, unless 
specifically authorized under a security program under this part. No 
aircraft operator may use such a system in a manner contrary to its 
security program. The Administrator authorizes aircraft operators to 
use X-ray systems for inspecting accessible property or checked baggage 
under a security program if the aircraft operator shows that--
    (1) The system meets the standards for cabinet X-ray systems 
primarily for the inspection of baggage issued by the Food and Drug 
Administration (FDA) and published in 21 CFR 1020.40;
    (2) A program for initial and recurrent training of operators of 
the system is established, which includes training in radiation safety, 
the efficient use of X-ray systems, and the identification of 
explosives, incendiaries, and deadly or dangerous weapons; and
    (3) The system meets the imaging requirements set forth in its 
security program using the step wedge specified in American Society for 
Testing Materials (ASTM) Standard F792-88 (Reapproved 1993). This 
standard is incorporated by reference in paragraph (g) of this section.
    (b) No aircraft operator may use any X-ray system unless, within 
the preceding 12 calendar months, a radiation survey is conducted that 
shows that the system meets the applicable performance standards in 21 
CFR 1020.40.
    (c) No aircraft operator may use any X-ray system after the system 
has been installed at a screening point 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 aircraft operator shows that 
it can be moved without altering its performance.
    (d) No aircraft operator 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 aircraft operator may use any X-ray system to inspect 
accessible property or checked baggage unless a sign is posted in a 
conspicuous place at the screening checkpoint or where checked baggage 
is accepted which notifies individuals that such items are being 
inspected by an X-ray and advises them to remove all X-ray, scientific, 
and high-speed film from accessible property and checked baggage before 
inspection. This sign shall also advise individuals that they may 
request that an inspection be made of their photographic equipment and 
film packages without exposure to an X-ray system. If the X-ray system 
exposes any accessible property or checked baggage to more than one 
milliroentgen during the inspection, the aircraft operator shall post a 
sign that advises individuals to remove film of all kinds from their 
articles before inspection. If requested by individuals, their 
photographic equipment and film packages shall be inspected without 
exposure to an X-ray system.
    (f) Each aircraft operator 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

[[Page 37362]]

for inspection upon request by the Administrator at each of the 
following locations--
    (1) The aircraft operator's principal business office; and
    (2) The place where the X-ray system is in operation.
    (g) The American Society for Testing and Materials (ASTM) Standard 
F792-88 (Reapproved 1993), ``Standard Practice for Design and Use of 
Ionizing Radiation Equipment for the Detection of Items Prohibited in 
Controlled Access Areas,'' was approved for incorporation by reference 
by the Director of the Federal Register pursuant to 5 U.S.C. 552(a) and 
1 CFR part 51. ASTM Standard F792-88 may be examined at the Department 
of Transportation (DOT) Docket, 400 Seventh Street SW, Room Plaza 401, 
Washington, DC 20590, or on DOT's Docket Management System (DMS) web 
page at http://dms.dot.gov/search (under docket number FAA-2001-8725). 
Copies of the standard may be examined also at the Office of the 
Federal Register, 800 North Capitol St., NW, Suite 700, Washington, DC. 
In addition, ASTM Standard F792-88 (Reapproved 1993) may be obtained 
from the American Society for Testing and Materials, 100 Barr Harbor 
Drive, West Conshohocken, PA 19428-2959.
    (h) Each aircraft operator shall comply with the X-ray operator 
duty time limitations specified in its security program.


Sec. 108.211  Use of explosives detection systems.

    (a) If the Administrator so requires by an amendment to an aircraft 
operator's security program, each aircraft operator required to conduct 
screening under a security program shall use an explosives detection 
system approved by the Administrator to screen checked baggage on 
international flights.
    (b) No aircraft operator may use an explosives detection system 
that uses X-ray technology to inspect checked baggage unless a sign is 
posted in a conspicuous place where checked baggage is accepted, which 
notifies individuals that such items are being inspected by an 
explosives detection system and advises them to remove all X-ray, 
scientific, and high-speed film from checked baggage before inspection. 
This sign shall also advise individuals that they may request that an 
inspection be made of their photographic equipment and film packages 
without exposure to an explosives detection system. If the explosives 
detection system exposes any checked baggage to more than one 
milliroentgen during the inspection the aircraft operator shall post a 
sign which advises individuals to remove film of all kinds from their 
articles before inspection. If requested by individuals, their 
photographic equipment and film packages shall be inspected without 
exposure to an explosives detection system.


Sec. 108.213  Employment standards for screening personnel.

    (a) No aircraft operator may use any person to perform any 
screening function, unless that person has:
    (1) A high school diploma, a General Equivalency Diploma, or a 
combination of education and experience that the aircraft operator has 
determined to have equipped the person to perform the duties of the 
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 operating X-ray equipment shall be able to 
distinguish on the X-ray monitor the appropriate imaging standard 
specified in the aircraft operator's security program. Wherever the X-
ray system displays colors, the operator shall be able to perceive each 
color;
    (ii) 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;
    (iii) Screeners shall be able to hear and respond to the spoken 
voice and to audible alarms generated by screening equipment in an 
active checkpoint environment;
    (iv) Screeners performing physical searches or other related 
operations shall be able to efficiently and thoroughly manipulate and 
handle such baggage, containers, and other objects subject to security 
processing; and
    (v) Screeners who perform pat-downs 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, and write 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, 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; 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 aircraft operator's 
security program, except as provided in paragraph (b) of this section.
    (b) The aircraft operator may use a person who has not completed 
the training required by paragraph (a)(4) of this section during the 
on-the-job portion of training to perform security functions provided 
that the person:
    (1) Is closely supervised; and
    (2) Does not make independent judgments as to whether persons or 
property may enter a sterile area or aircraft without further 
inspection.
    (c) No aircraft operator 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 aircraft operator's security program.
    (d) Each aircraft operator shall ensure that a Ground Security 
Coordinator conducts and documents an annual evaluation of each person 
assigned screening duties and may continue that person's employment in 
a screening capacity only upon the determination by the Ground Security 
Coordinator 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 its security program; and
    (3) Demonstrates the current knowledge and skills necessary to 
courteously, vigilantly, and effectively perform screening functions.
    (e) Paragraphs (a) through (d) of this section do not apply to 
those screening functions conducted outside the United States over 
which the aircraft operator does not have operational control. In the 
event the aircraft operator is unable to implement paragraphs (a) 
through (d) of this section for screening functions outside the United 
States, the aircraft operator shall notify the Administrator of those 
aircraft operator stations so affected.
    (f) At locations outside the United States where the aircraft 
operator has operational control over a screening function, the 
aircraft operator may use screeners who do not meet the requirements of 
paragraph (a)(3) of this section, provided that at least one 
representative of the aircraft operator who has the ability to 
functionally read and speak English is present while the

[[Page 37363]]

aircraft operator's passengers are undergoing security screening.


Sec. 108.215  Security coordinators.

    (a) Aircraft Operator Security Coordinator. Each aircraft operator 
shall designate and use an Aircraft Operator Security Coordinator 
(AOSC). The AOSC and any alternates shall be appointed at the corporate 
level and shall serve as the aircraft operator's primary contact for 
security-related activities and communications with the FAA, as set 
forth in the security program. Either the AOSC, or an alternate AOSC, 
shall be available on a 24-hour basis.
    (b) Ground Security Coordinator. Each aircraft operator shall 
designate and use a Ground Security Coordinator for each domestic and 
international flight departure to carry out the Ground Security 
Coordinator duties specified in the aircraft operator's security 
program. The Ground Security Coordinator at each airport shall conduct 
the following daily:
    (1) A review of all security-related functions for effectiveness 
and compliance with this part, the aircraft operator's security 
program, and applicable Security Directives.
    (2) Immediate initiation of corrective action for each instance of 
noncompliance with this part, the aircraft operator's security program, 
and applicable Security Directives. At foreign airports where such 
security measures are provided by an agency or contractor of a host 
government, the aircraft operator shall notify the Administrator for 
assistance in resolving noncompliance issues.
    (c) In-flight Security Coordinator. Each aircraft operator shall 
designate and use the pilot in command as the In-flight Security 
Coordinator for each domestic and international flight to perform 
duties specified in the aircraft operator's security program.


Sec. 108.217  Law enforcement personnel.

    (a) The following applies to operations at airports within the 
United States not required to hold a security program under part 107 of 
this chapter:
    (1) For operations described in Sec. 108.101(a) each aircraft 
operator shall provide for law enforcement personnel meeting the 
qualifications and standards specified in Secs. 107.215 and 107.217 of 
this chapter.
    (2) For operations described in Sec. 108.101(b) or (c) each 
aircraft operator shall--
    (i) Arrange for law enforcement personnel meeting the 
qualifications and standards specified in Sec. 107.217 of this chapter 
to be available to respond to an incident; and
    (ii) Provide its employees, including crewmembers, current 
information regarding procedures for obtaining law enforcement 
assistance at that airport.
    (b) The following applies to operations at airports required to 
hold security programs under part 107 of this chapter. For operations 
described in Sec. 108.101(c), each aircraft operator shall--
    (1) Arrange with the airport operator for law enforcement personnel 
meeting the qualifications and standards specified in Sec. 107.217 of 
this chapter to be available to respond to incidents; and
    (2) Provide its employees, including crewmembers, current 
information regarding procedures for obtaining law enforcement 
assistance at that airport.


Sec. 108.219  Carriage of accessible weapons.

    (a) Flights for which screening is conducted. The provisions of 
Sec. 108.201(e), with respect to accessible deadly or dangerous 
weapons, do not apply to a law enforcement officer (LEO) aboard a 
flight for which screening is required if the requirements of this 
section are met. This paragraph (a) does not apply to a Federal Air 
Marshal on duty status under Sec. 108.223.
    (1) Unless otherwise authorized by the Administrator, the armed LEO 
shall meet the following requirements:
    (i) Be a Federal law enforcement officer or a full-time municipal, 
county, or state law enforcement officer who is a direct employee of a 
government agency.
    (ii) Be sworn and commissioned to enforce criminal statutes or 
immigration statutes.
    (iii) Be authorized by the employing agency to have the weapon in 
connection with assigned duties.
    (iv) Has completed the training program ``Law Enforcement Officers 
Flying Armed.''
    (2) In addition to the requirements of paragraph (a)(1) of this 
section, the armed LEO must have a need to have the weapon accessible 
from the time he or she would otherwise check the weapon until the time 
it would be claimed after deplaning. The need to have the weapon 
accessible shall be determined by the employing agency, department, or 
service and be based on one of the following:
    (i) The provision of protective duty, for instance, assigned to a 
principal or advance team, or on travel required to be prepared to 
engage in a protective function.
    (ii) The conduct of a hazardous surveillance operation.
    (iii) On official travel required to report to another location, 
armed and prepared for duty.
    (iv) Employed as a Federal LEO, whether or not on official travel, 
and armed in accordance with an agency-wide policy governing that type 
of travel established by the employing agency by directive or policy 
statement.
    (v) Control of a prisoner, in accordance with Sec. 108.221, or an 
armed LEO on a round trip ticket returning from escorting, or traveling 
to pick up, a prisoner.
    (vi) FAA Federal Air Marshal on duty status.
    (3) The armed LEO shall comply with the following notification 
requirements:
    (i) All armed LEOs shall notify the aircraft operator of the 
flight(s) on which he or she needs to have the weapon accessible at 
least 1 hour, or in an emergency as soon as practicable, before 
departure.
    (ii) Identify himself or herself to the aircraft operator by 
presenting credentials that include a clear full-face picture, the 
signature of the armed LEO, and the signature of the authorizing 
official of the agency, service, or department or the official seal of 
the agency, service, or department. A badge, shield, or similar device 
may not be used, or accepted, as the sole means of identification.
    (iii) If the armed LEO is a State, county, or municipal law 
enforcement officer, he or she shall present an original letter of 
authority, signed by an authorizing official from his or her employing 
agency, service or department, confirming the need to travel armed and 
detailing the itinerary of the travel while armed.
    (iv) If the armed LEO is an escort for a foreign official then this 
paragraph (a)(3) may be satisfied by a State Department notification.
    (4) The aircraft operator shall do the following:
    (i) Obtain information or documentation required in paragraphs 
(a)(3)(ii), (iii), and (iv) of this section.
    (ii) Advise the armed LEO, before boarding, of the aircraft 
operator's procedures for carrying out this section.
    (iii) Have the LEO confirm he/she has completed the training 
program ``Law Enforcement Officers Flying Armed'' as required by the 
FAA, unless otherwise authorized by the Administrator.
    (iv) Ensure that the identity of the armed LEO is known to the 
appropriate personnel who are responsible for security during the 
boarding of the aircraft.
    (v) Notify the pilot in command and other appropriate crewmembers, 
of the location of each armed LEO aboard the

[[Page 37364]]

aircraft. Notify any other armed LEO of the location of each armed LEO, 
including FAM's. Under circumstances described in the security program, 
the aircraft operator must not close the doors until the notification 
is complete.
    (vi) Ensure that the information required in paragraphs (a)(3)(i) 
and (ii) of this section is furnished to the flight crew of each 
additional connecting flight by the Ground Security Coordinator or 
other designated agent at each location.
    (b) Flights for which screening is not conducted. The provisions of 
Sec. 108.201(e), with respect to accessible deadly or dangerous 
weapons, do not apply to a LEO aboard a flight for which screening is 
not required if the requirements of paragraphs (a)(1), (3), and (4) of 
this section are met.
    (c) Alcohol. (1) No aircraft operator may serve any alcoholic 
beverage to an armed LEO.
    (2) No armed LEO may:
    (i) Consume any alcoholic beverage while aboard an aircraft 
operated by an aircraft operator.
    (ii) Board an aircraft armed if they have consumed an alcoholic 
beverage within the previous 8 hours.
    (d) Location of weapon. (1) Any person traveling aboard an aircraft 
while armed shall at all times keep their weapon:
    (i) Concealed and out of view, either on their person or in 
immediate reach, if the armed LEO is not in uniform.
    (ii) On their person, if the armed LEO is in uniform.
    (2) No person may place a weapon in an overhead storage bin.


Sec. 108.221  Carriage of prisoners under the control of armed law 
enforcement officers.

    (a) This section applies as follows:
    (1) This section applies to the transport of prisoners under the 
escort of an armed law enforcement officer.
    (2) This section does not apply to the carriage of passengers under 
voluntary protective escort.
    (3) This section does not apply to the escort of non-violent 
detainees of the Immigration and Naturalization Service. This section 
does not apply to persons who may be traveling with a prisoner and 
armed escort, such as the family of a deportee who is under armed 
escort.
    (b) For the purpose of this section:
    (1) High risk prisoner means a prisoner who is an exceptional 
escape risk, as determined by the law enforcement agency, and charged 
with, or convicted of, a violent crime.
    (2) Low risk prisoner means any prisoner who has not been 
designated as ``high risk.''
    (c) No aircraft operator may carry a prisoner in the custody of an 
armed law enforcement officer aboard an aircraft for which screening is 
required unless, in addition to the requirements in Sec. 108.219, the 
following requirements are met:
    (1) The agency responsible for control of the prisoner has 
determined whether the prisoner is considered a high risk or a low 
risk.
    (2) Unless otherwise authorized by the Administrator, no more than 
one high risk prisoner shall be carried on the aircraft.
    (d) No aircraft operator may carry a prisoner in the custody of an 
armed law enforcement officer aboard an aircraft for which screening is 
required unless the following staffing requirements are met:
    (1) A minimum of one armed law enforcement officer shall control a 
low risk prisoner on a flight that is scheduled for 4 hours or less. No 
more than two low risk prisoners may be carried under the control of 
any one armed law enforcement officer.
    (2) A minimum of two armed law enforcement officers shall control a 
low risk prisoner on a flight that is scheduled for more than 4 hours. 
No more than two low risk prisoners may be carried under the control of 
any two armed law enforcement officers.
    (3) For high-risk prisoners:
    (i) For one high-risk prisoner on a flight: A minimum of two armed 
law enforcement officers shall control a high risk prisoner. No other 
prisoners may be under the control of those two armed law enforcement 
officers.
    (ii) If the Administrator has authorized more than one high-risk 
prisoner to be on the flight under paragraph (c)(2) of this section, a 
minimum of at least one armed law enforcement officer for each prisoner 
and one additional armed law enforcement officer shall control the 
prisoners. No other prisoners may be under the control of those armed 
law enforcement officers.
    (e) An armed law enforcement officer who is escorting a prisoner--
    (1) Shall notify the aircraft operator at least 24 hours before the 
scheduled departure, or, if that is not possible as far in advance as 
possible of the following--
    (i) The identity of the prisoner to be carried and the flight on 
which it is proposed to carry the prisoner; and
    (ii) Whether or not the prisoner is considered to be a high risk or 
a low risk.
    (2) Shall arrive at the check-in counter at least 1 hour before to 
the scheduled departure.
    (3) Shall assure the aircraft operator, before departure, that each 
prisoner under the control of the officer(s) has been searched and does 
not have on or about his or her person or property anything that can be 
used as a deadly or dangerous weapon.
    (4) Shall be seated between the prisoner and any aisle.
    (5) Shall accompany the prisoner at all times, and keep the 
prisoner under control while aboard the aircraft.
    (f) No aircraft operator may carry a prisoner in the custody of an 
armed law enforcement officer aboard an aircraft unless the following 
are met:
    (1) When practicable, the prisoner shall be boarded before any 
other boarding passengers and deplaned after all other deplaning 
passengers.
    (2) The prisoner shall be seated in a seat that is neither located 
in any passenger lounge area nor located next to or directly across 
from any exit and, when practicable, the aircraft operator should seat 
the prisoner in the rearmost seat of the passenger cabin.
    (g) Each armed law enforcement officer escorting a prisoner and 
each aircraft operator shall ensure that the prisoner is restrained 
from full use of his or her hands by an appropriate device that 
provides for minimum movement of the prisoner's hands, and shall ensure 
that leg irons are not used.
    (h) No aircraft operator may provide a prisoner under the control 
of a law enforcement officer--
    (1) With food or beverage or metal eating utensils unless 
authorized to do so by the armed law enforcement officer.
    (2) With any alcoholic beverage.


Sec. 108.223  Transportation of Federal Air Marshals.

    (a) A Federal Air Marshal on duty status may have a deadly or 
dangerous weapon accessible while aboard an aircraft for which 
screening is required.
    (b) Each aircraft operator shall carry Federal Air Marshals, in the 
number and manner specified by the Administrator, on each scheduled 
passenger operation, and public charter passenger operation designated 
by the Administrator.
    (c) Each Federal Air Marshal shall be carried on a first priority 
basis and without charge while on duty, including positioning and 
repositioning flights. When a Federal Air Marshal is assigned to a 
scheduled flight that is canceled for any reason, the aircraft operator 
shall carry that Federal Air Marshal without charge on another flight 
as designated by the Administrator.
    (d) Each aircraft operator shall assign the specific seat requested 
by a Federal Air Marshal who is on duty status. If another LEO is 
assigned to that seat or

[[Page 37365]]

requests that seat, the aircraft operator shall inform the Federal Air 
Marshal. The Federal Air Marshal will coordinate seat assignments with 
the other LEO.
    (e) The Federal Air Marshal identifies himself or herself to the 
aircraft operator by presenting credentials that include a clear, full-
face picture, the signature of the Federal Air Marshal, and the 
signature of the Administrator. A badge, shield, or similar device may 
not be used or accepted as the sole means of identification.
    (f) The requirements of Sec. 108.219(a) do not apply for a Federal 
Air Marshal on duty status.
    (g) Each aircraft operator shall restrict any information 
concerning the presence, seating, names, and purpose of Federal Air 
Marshals at any station or on any flight to those persons with an 
operational need to know.
    (h) Law enforcement officers authorized to carry a weapon during a 
flight will be contacted directly by a Federal Air Marshal who is on 
that same flight.


Sec. 108.225  Security of aircraft and facilities.

    Each aircraft operator shall use the procedures included, and the 
facilities and equipment described, in its security program to perform 
the following control functions with respect to each aircraft 
operation:
    (a) Prevent unauthorized access to areas controlled by the aircraft 
operator under an exclusive area agreement in accordance with 
Sec. 107.111 of this chapter.
    (b) Prevent unauthorized access to each aircraft.
    (c) Conduct a security inspection of each aircraft before placing 
it into passenger operations if access has not been controlled in 
accordance with the aircraft operator security program and as otherwise 
required in the security program.


Sec. 108.227  Exclusive Area Agreement.

    (a) An aircraft operator that has entered into an exclusive area 
agreement with an airport operator, under Sec. 107.111 of this chapter 
shall carry out that exclusive area agreement.
    (b) The aircraft operator shall list in its security program the 
locations at which it has entered into exclusive area agreements with 
an airport operator.
    (c) The aircraft operator shall provide the exclusive area 
agreement to the Administrator upon request.
    (d) Any exclusive area agreements in effect on November 14, 2001 
shall meet the requirements of this section and Sec. 107.111 of this 
chapter no later than November 14, 2002.


Sec. 108.229  Employment history, verification, and criminal history 
records checks.

    (a) Scope. The following persons are within the scope of this 
section:
    (1) Each employee or contractor employee covered under a 
certification made to an airport operator, pursuant to 
Sec. 107.209(n)(1) of this chapter, made on or after November 24, 1998.
    (2) Each individual issued aircraft operator identification media 
that one or more airports accept as airport approved media for 
unescorted access within a security identification display area (SIDA) 
as described in Sec. 107.205 of this chapter.
    (3) Each individual assigned, after November 24, 1998, to perform 
at locations within the United States the following functions:
    (i) Screen passengers or property that will be carried in a cabin 
of an aircraft of an aircraft operator required to screen passengers 
under this part.
    (ii) Serve as an immediate supervisor (checkpoint security 
supervisor (CSS)), or the next supervisory level (shift or site 
supervisor), to those individuals described in paragraph (a)(3)(i) of 
this section.
    (b) Employment history investigations required. Each aircraft 
operator shall ensure that, for each individual described in paragraph 
(a) of this section, the following requirements are met:
    (1) The individual has satisfactorily undergone Part 1 of an 
employment history investigation. Part 1 consists of a review of the 
previous 10-years of employment history and verification of the 5 
employment years preceding the date the employment history 
investigation is initiated as provided in paragraph (c) of this 
section; and
    (2) If required by paragraph (c)(5) of this section, the individual 
has satisfied Part 2 of the employment history investigation. Part 2 is 
the process to determine if the individual has a criminal record. To 
satisfy Part 2 of the investigation the criminal records check shall 
not disclose that the individual has been convicted or found not guilty 
by reason of insanity, in any jurisdiction, during the 10 years ending 
on the date of such investigation, of any of the crimes listed as 
follows:
    (i) Forgery of certificates, false marking of aircraft, and other 
aircraft registration violation, 49 U.S.C. 46306;
    (ii) Interference with air navigation, 49 U.S.C. 46308;
    (iii) Improper transportation of a hazardous material, 49 U.S.C. 
46312;
    (iv) Aircraft piracy, 49 U.S.C. 46502;
    (v) Interference with flightcrew members or flight attendants, 49 
U.S.C. 46504;
    (vi) Commission of certain crimes aboard aircraft in flight, 49 
U.S.C. 46506;
    (vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C. 
46505;
    (viii) Conveying false information and threats, 49 U.S.C. 49 46507;
    (ix) Aircraft piracy outside the special aircraft jurisdiction of 
the United States, 49 U.S.C. 46502(b);
    (x) Lighting violations involving transporting controlled 
substances, 49 U.S.C. 46315;
    (xi) Unlawful entry into an aircraft or airport area that serves 
aircraft operators or foreign air carriers contrary to established 
security requirements, 49 U.S.C. 46314;
    (xii) Destruction of an aircraft or aircraft facility, 18 U.S.C. 
32;
    (xiii) Murder;
    (xiv) Assault with intent to murder;
    (xv) Espionage;
    (xvi) Sedition;
    (xvii) Kidnapping or hostage taking;
    (xviii) Treason;
    (xix) Rape or aggravated sexual abuse;
    (xx) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon;
    (xxi) Extortion;
    (xxii) Armed robbery;
    (xxiii) Distribution of, or intent to distribute, a controlled 
substance;
    (xxiv) Felony arson; or
    (xxv) Conspiracy or attempt to commit any of the aforementioned 
criminal acts.
    (3) If an individual admits to a conviction, or to having been 
found not guilty by reason of insanity, in any jurisdiction within the 
preceding ten years of a crime listed in paragraph (b)(2) of this 
section, the investigative process shall end and the individual shall 
not be granted unescorted access or assigned to any functions listed in 
paragraph (a)(3) of this section.
    (c) Investigative steps. Part 1 of the employment history 
investigations shall be completed on all persons described in paragraph 
(a) of this section. If required by paragraph (c)(5) of this section, 
Part 2 of the employment history investigation shall also be completed 
on all persons listed in paragraph (a) of this section.
    (1) The individual shall provide the following information on an 
application:
    (i) The individual's full name, including any aliases or nicknames;
    (ii) The dates, names, phone numbers, and addresses of previous 
employers, with explanations for any gaps in employment of more than 12

[[Page 37366]]

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

[[Page 37367]]

investigation file until 180 days after the termination of the 
individual's authority for unescorted access or termination from 
positions covered under paragraph (a)(3) of this section. Part 1 of the 
employment history investigation, completed on screening personnel 
shall be maintained at the airport where they perform screening 
functions. Part 1 of the employment history investigation file shall 
consist of the following:
    (i) The application;
    (ii) The employment verification information obtained by the 
employer;
    (iii) The names of those individuals from whom the employment 
verification information was obtained;
    (iv) The date and the method of how the contact was made; and
    (v) Any other information as required by the Administrator.
    (2) The aircraft operator shall physically maintain, control, and 
when appropriate, destroy Part 2 the criminal record file, for each 
individual for whom a fingerprint comparison has been made. Part 2 
shall be maintained for 180 days after the termination of the 
individual's authority for unescorted access or after the individual 
ceases to perform screening functions. Only direct aircraft operator 
employees may carry out Part 2 responsibilities. Part 2 shall consist 
of the following:
    (i) The results of the record check; or
    (ii) Certification from the aircraft operator that the check was 
completed and did not uncover a disqualifying conviction.
    (3) The files required by this paragraph shall be maintained in a 
manner that is acceptable to the Administrator and in a manner that 
protects the confidentiality of the individual.
    (l) Continuing responsibilities. (1) Any individual authorized to 
have unescorted access privilege to the SIDA or who performs functions 
covered under paragraph (a)(3) of this section, who is subsequently 
convicted of any of the crimes listed in paragraph (b)(2) of this 
section shall, within 24 hours, report the conviction to the aircraft 
operator and surrender the SIDA access medium or any employment related 
identification medium to the issuer.
    (2) If information becomes available to the aircraft operator 
indicating that an individual has a possible conviction for one of the 
disqualifying crimes in paragraph (b)(2) of this section, the aircraft 
operator shall determine the status of the conviction and, if the 
conviction is confirmed:
    (i) Immediately revoke access authorization for unescorted access 
to the SIDA; or
    (ii) Immediately remove the individual from screening functions 
covered under paragraph (a)(3) of this section.
    (m) Aircraft operator responsibility. The aircraft operator shall:
    (1) Designate an individual(s) to be responsible for maintaining 
and controlling the employment history investigation for those whom the 
aircraft operator has made a certification to an airport operator under 
Sec. 107.209(n)(1) of this chapter and for destroying the criminal 
record files when their maintenance is no longer required by paragraph 
(k)(2) of this section.
    (2) Designate an individual(s) to maintain and control Part 1 of 
the employment history investigations of screeners whose files shall be 
maintained at the location or station where the screener is performing 
his or her duties.
    (3) Designate an individual(s) to serve as the contact to receive 
notification from an individual applying for either unescorted access 
or those seeking to perform screening functions of his/her intent to 
seek correction of his/her criminal record with the FBI.
    (4) Designate an individual(s) to maintain and control Part 2 of 
the employment history investigation file for all employees, 
contractors, or others who undergo a fingerprint comparison at the 
request of the aircraft operator.
    (5) Audit the employment history investigations performed in 
accordance with this section. The audit process shall be set forth in 
the aircraft operator security program.


Sec. 108.231  Airport-approved and exclusive area personnel 
identification systems.

    (a) Each aircraft operator shall establish and carry out a 
personnel identification system for identification media that are 
airport-approved, or identification media that are issued for use in an 
exclusive area. The system shall include the following:
    (1) Personnel identification media that--
    (i) Convey a full face image, full name, employer, and 
identification number of the individual to whom the identification 
medium is issued;
    (ii) Indicate clearly the scope of the individual's access and 
movement privileges;
    (iii) Indicate clearly an expiration date; and
    (iv) Are of sufficient size and appearance as to be readily 
observable for challenge purposes.
    (2) Procedures to ensure that each individual in the secured area 
or SIDA continuously displays the identification medium issued to that 
individual on the outermost garment above waist level, or is under 
escort.
    (3) Procedures to ensure accountability through the following:
    (i) Retrieving expired identification media.
    (ii) Reporting lost or stolen identification media.
    (iii) Securing unissued identification media stock and supplies.
    (iv) Auditing the system at a minimum of once a year, or sooner, as 
necessary to ensure the integrity and accountability of all 
identification media.
    (v) As specified in the aircraft operator security program, 
revalidate the identification system or reissue identification media if 
a portion of all issued, unexpired identification media are lost, 
stolen, or unretrieved, including identification media that are 
combined with access media.
    (vi) Ensure that only one identification medium is issued to an 
individual at a time. A replacement identification medium may only be 
issued if an individual declares in writing that the medium has been 
lost or stolen.
    (b) The aircraft operator may request approval of a temporary 
identification media system that meets the standards in Sec. 107.211(b) 
of this chapter, or may arrange with the airport to use temporary 
airport identification media in accordance with that section.
    (c) Each aircraft operator shall submit a plan to carry out this 
section to the Administrator no later than May 13, 2002. Each aircraft 
operator shall fully implement its plan no later than November 14, 
2003.


Sec. 108.233  Security coordinators and crewmembers, training.

    (a) No aircraft operator may use any person as a Ground Security 
Coordinator unless, within the preceding 12-calendar months, that 
person has satisfactorily completed the security training as specified 
in the aircraft operator's security program.
    (b) No aircraft operator may use any person as an in-flight 
security coordinator or crewmember on any domestic or international 
flight unless, within the preceding 12-calendar months or within the 
time period specified in an Advanced Qualifications Program approved 
under SFAR 58, that person has satisfactorily completed the security 
training required by Sec. 121.417(b)(3)(v) or Sec. 135.331(b)(3)(v) of 
this chapter, and as specified in the aircraft operator's security 
program.
    (c) With respect to training conducted under this section, whenever 
a person completes recurrent training within one

[[Page 37368]]

calendar month earlier, or one calendar month after the date it was 
required, that person is considered to have completed the training in 
the calendar month in which it was required.


Sec. 108.235  Training and knowledge for persons with security-related 
duties.

    (a) No aircraft operator may use any direct or contractor employee 
to perform any security-related duties to meet the requirements of its 
security program unless that person has received training as specified 
in its security program including their individual responsibilities in 
Sec. 108.9.
    (b) Each aircraft operator shall ensure that individuals performing 
security-related duties for the aircraft operator have knowledge of the 
provisions of part 108, applicable Security Directives and Information 
Circulars, the approved airport security program applicable to their 
location, and the aircraft operator's security program to the extent 
that such individuals need to know in order to perform their duties.

Subpart D--Threat and Threat Response


Sec. 108.301  Contingency plan.

    Each aircraft operator shall adopt a contingency plan and shall:
    (a) Implement its contingency plan when directed by the 
Administrator.
    (b) Ensure that all information contained in the plan is updated 
annually and that appropriate persons are notified of any changes.
    (c) Participate in an airport operator-sponsored exercise of the 
airport contingency plan or its equivalent, as provided in its security 
program.


Sec. 108.303  Bomb or air piracy threats.

    (a) Flight: Notification. Upon receipt of a specific and credible 
threat to the security of a flight, the aircraft operator shall--
    (1) Immediately notify the ground and in-flight security 
coordinators of the threat, any evaluation thereof, and any measures to 
be applied;
    (2) Ensure that the in-flight security coordinator notifies all 
crewmembers of the threat, any evaluation thereof, and any measures to 
be applied; and
    (3) Immediately notify the appropriate airport operator.
    (b) Flight: Inspection. Upon receipt of a specific and credible 
threat to the security of a flight, each aircraft operator shall 
attempt to determine whether or not any explosive or incendiary is 
present by doing the following:
    (1) Conduct a security inspection on the ground before the next 
flight or, if the aircraft is in flight, immediately after its next 
landing.
    (2) If the aircraft is on the ground, immediately deplane all 
passengers and submit that aircraft to a security search.
    (3) If the aircraft is in flight, immediately advise the pilot in 
command of all pertinent information available so that necessary 
emergency action can be taken.
    (c) Ground Facility. Upon receipt of a specific and credible threat 
to a specific ground facility at the airport, the aircraft operator 
shall:
    (1) Immediately notify the appropriate airport operator.
    (2) Inform all other aircraft operators and foreign air carriers at 
the threatened facility.
    (3) Conduct a security inspection.
    (d) Notification. Upon receipt of any bomb threat against the 
security of a flight or facility, or upon receiving information that an 
act or suspected act of air piracy has been committed, the aircraft 
operator also shall notify the Administrator. If the aircraft is in 
airspace under other than U.S. jurisdiction, the aircraft operator 
shall also notify the appropriate authorities of the State in whose 
territory the aircraft is located and, if the aircraft is in flight, 
the appropriate authorities of the State in whose territory the 
aircraft is to land. Notification of the appropriate air traffic 
controlling authority is sufficient action to meet this requirement.


Sec. 108.305  Security Directives and Information Circulars.

    (a) The Administrator may issue an Information Circular to notify 
aircraft operators of security concerns. When the Administrator 
determines that additional security measures are necessary to respond 
to a threat assessment or to a specific threat against civil aviation, 
the Administrator issues a Security Directive setting forth mandatory 
measures.
    (b) Each aircraft operator required to have an approved aircraft 
operator security program shall comply with each Security Directive 
issued to the aircraft operator by the Administrator, within the time 
prescribed in the Security Directive for compliance.
    (c) Each aircraft operator that receives a Security Directive 
shall--
    (1) Within the time prescribed in the Security Directive, verbally 
acknowledge receipt of the Security Directive to the Administrator.
    (2) Within the time prescribed in the Security Directive, specify 
the method by which the measures in the Security Directive have been 
implemented (or will be implemented, if the Security Directive is not 
yet effective).
    (d) In the event that the aircraft operator is unable to implement 
the measures in the Security Directive, the aircraft operator shall 
submit proposed alternative measures and the basis for submitting the 
alternative measures to the Administrator for approval. The aircraft 
operator shall submit the proposed alternative measures within the time 
prescribed in the Security Directive. The aircraft operator shall 
implement any alternative measures approved by the Administrator.
    (e) Each aircraft operator that receives a Security Directive may 
comment on the Security Directive by submitting data, views, or 
arguments in writing to the Administrator. The Administrator may amend 
the Security Directive based on comments received. Submission of a 
comment does not delay the effective date of the Security Directive.
    (f) Each aircraft operator that receives a Security Directive or 
Information Circular and each person who receives information from a 
Security Directive or Information Circular shall:
    (1) Restrict the availability of the Security Directive or 
Information Circular, and information contained in either document, to 
those persons with an operational need-to-know.
    (2) Refuse to release the Security Directive or Information 
Circular, and information contained in either document, to persons 
other than those with an operational need-to-know without the prior 
written consent of the Administrator.

    Issued in Washington, DC, on July 2, 2001.
Jane F. Garvey,
Administrator.
[FR Doc. 01-16995 Filed 7-10-01; 10:32 am]
BILLING CODE 4910-13-P