[Federal Register Volume 67, Number 36 (Friday, February 22, 2002)]
[Rules and Regulations]
[Pages 8205-8210]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4235]


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DEPARTMENT OF TRANSPORTATION

Transportation Security Administration

49 CFR Parts 1540 and 1544

[Docket No. TSA-2002-11604]
RIN 2110-AA04


Security Programs for Aircraft 12,500 Pounds or More

AGENCY: Transportation Security Administration (TSA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This rule requires that certain aircraft operators using 
aircraft with a maximum certificated takeoff weight of 12,500 pounds or 
more carry out security measures. This rule requires that certain 
aircraft operators conduct criminal history records checks on their 
flightcrew members, and restrict access to the flight deck. These 
measures are necessary to comply with Congressional mandates and to 
enhance security in air transportation.

DATES: This rule is effective June 24, 2002. Submit comments by April 
23, 2002.

ADDRESSES: Comments Submitted by Mail: Address written, signed comments 
to the Docket Management System, U.S. Department of Transportation, 
Room Plaza 401, 400 Seventh Street, SW., Washington, DC 20590. You must 
identify the docket number TSA-2002-11604 at the beginning of your 
comments, and you should submit two copies of your comments. If you 
wish to receive confirmation that TSA received your comments, include a 
self-addressed, stamped postcard on which the following statement is 
made: ``Comments to Docket No. TSA-2002-11604.'' The postcard will be 
date-stamped and mailed to you.
    Comments Filed Electronically: You may also submit comments through 
the Internet at http://dms.dot.gov.
    Reviewing Comments in the Docket: You may review the public docket 
containing comments to these proposed regulations in person in the 
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except 
Federal holidays. The Dockets Office is on the plaza level of the 
NASSIF Building at the Department of Transportation at the above 
address. Also, you may review public dockets on the Internet at
http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Lon Siro, Transportation Security 
Administration, 800 Independence Ave., SW., Washington, DC 20591; 
telephone 202-267-3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This final rule is being adopted without prior notice and prior 
public comment. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; Feb. 26, 1979), however 
provides that, to the maximum extent possible, operating 
administrations for the DOT should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, 
interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments. Comments relating to 
environmental, energy, federalism, or

[[Page 8206]]

international trade impacts that might result from this amendment also 
are invited. Comments must include the regulatory docket or amendment 
number and must be submitted in duplicate to the address above. All 
comments received, as well as a report summarizing each substantive 
public contact with TSA personnel on this rulemaking, will be filed in 
the public docket. The docket is available for public inspection before 
and after the comment closing date.
    TSA will consider all comments received on or before the closing 
date for comments. Late-filed comments will be considered to the extent 
practicable. This final rule may be amended in light of the comments 
received.
    See ADDRESSES above for information on how to submit comments.

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to 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 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 the 
Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140html.
    In addition, copies are available by writing or calling the 
Transportation Security Administration's Air Carrier Division, 800 
Independence Avenue, SW., Washington, DC 20591; telephone 202-267-3413.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires TSA to comply with small entity requests for information 
advice about compliance with statutes and regulations within TSA's 
jurisdiction. Any small entity that has a question regarding this 
document may contact the person listed in FOR FURTHER INFORMATION 
CONTACT for information. You can get further information regarding 
SBREFA on the Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.

Abbreviations and Terms Used in This Document

ATSA--Aviation and Transportation Security Act
CHRC--Criminal history records check
SIDA--Security identification display area

Background

History and Current Regulations

    On November 16, 2001, the Aviation and Transportation Security Act 
(ATSA) (Pub. L. 107-71), was enacted. ATSA created the Transportation 
Security Administration (TSA), and transferred aviation security 
functions from the Federal Aviation Administration (FAA) to TSA. The 
civil aviation security rules have been transferred from the FAA (in 
title 14, Code of Federal Regulations) to TSA (in title 49, Code of 
Federal Regulations) in a separate rulemaking (see docket number TSA-
2002-11602).
    Section 132(a) of ATSA requires the Under Secretary of 
Transportation for Security to ``implement a security program for 
charter air carriers * * * with a maximum certificated takeoff weight 
of 12,500 pounds or more.''
    Title 49 of the Code of Federal Regulations (CFR) part 1544 
requires that certain aircraft operators have security programs. These 
include:
     Those operating scheduled or public charter passenger 
operations with 61 or more passenger seats (full programs).
     Those operating scheduled or public charter passenger 
operations with any size aircraft that enplane passengers from or 
deplane passengers into a sterile area (full programs).
     Those operating scheduled or public charter operations in 
aircraft with 31 to 60 passenger seats (partial programs).
     Those operating private charter operations that enplane 
passengers from or deplane passengers into sterile areas (private 
charter program).
    In addition, an aircraft operator that is not required to have a 
security program under part 1544 may request a limited program in order 
to carry out certain activities. For instance, certain all-cargo 
aircraft operators have security programs that allow them to take over 
from the airport certain security functions at an airport, or that 
allow them to perform certain security measures to facilitate 
transferring cargo to passenger aircraft operators.
    Further, Special Federal Aviation Regulation (SFAR) 91 imposed 
security requirements on certain operators. See 66 FR 50531 (October 4, 
2001). Paragraph 1(b) required that aircraft operations in aircraft 
with a maximum certificated takeoff weight of more than 12,500 pounds 
carry out security procedures when notified by the Administrator of the 
FAA. In October 2001, the FAA notified all-cargo operators using 
aircraft with a maximum certificated takeoff weight of more than 95,000 
pounds to carry out certain security procedures. SFAR 91 was 
transferred, with changes, to 49 CFR part 1550.
    ATSA section 132(a) expands the number of aircraft operations that 
must be under a security program. It requires security measures for 
smaller aircraft, and for cargo aircraft, that are not required to be 
under security programs under current rules.
    Aircraft that have a maximum certificated takeoff weight of 12,500 
pounds or more generally have 18 or more passenger seats. Part 1544 
does not require security programs for passenger operations in aircraft 
with 30 seats or fewer. Accordingly, this rule requires security 
programs for the operation of smaller aircraft than under current 
rules. Note that some aircraft operators have full programs for 
operation of aircraft with 30 or fewer seats to allow them to enplane 
from and deplane into sterile areas.
    Part 1544 does not require all-cargo operators to have security 
programs. However, section 132(a) is not limited to passenger 
operations. Further, the events on September 11, 2001, demonstrate the 
ability to use aircraft to endanger persons on the ground. An aircraft 
so used is just as dangerous whether it holds cargo or passengers. 
Accordingly, this rule requires security programs for both passenger 
and all-cargo operations using aircraft with a maximum certificated 
takeoff weight of 12,500 pounds or more. As noted above, some all-cargo 
aircraft operators currently have limited security programs under part 
1544, or have security programs under Sec. 1550.7.
    Section 132(a) requires additional security measures for charter 
air carriers. In addition, there is no reason to apply additional 
security measures to charter air carriers, however, without also 
applying them to scheduled operations. Both carry passengers and 
property for hire. For both, the passengers rely on the aircraft 
operator to provide a safe and secure flight, and the potential for a 
criminal or terrorist threat against a scheduled operation is no less 
than against a charter operation. Accordingly, this rule applies 
security measures for both scheduled and charter service.

[[Page 8207]]

Analysis of the Amendments

    These amendments incorporate the new requirements in section 132(a) 
of ATSA, and require aircraft operators with aircraft having a maximum 
certificated takeoff weight of 12,500 pounds or more to have security 
programs for certain operations. This rule also requires certain 
additional measures for operators with full and partial security 
programs.

Twelve-Five Security Program

    This rule introduces a new security program, the twelve-five 
program. It applies to operations conducted in an aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more; in 
scheduled or charter service; carrying passengers or cargo or both; and 
not presently required to have a full program or partial security 
program. The contents of this new security program are similar to that 
for partial security programs. The main difference is that holders of 
twelve-five security programs are not required to participate in an 
airport operator-sponsored exercise of the airport contingency plan as 
described in Sec. 1544.301(c). These operators are often small and 
conduct operations at airports without such contingency plans, or use 
only remote areas of airports that have them. Participation in this 
exercise may be very burdensome. Note that the airport operator may 
require any aircraft operator using its airport to participate is such 
exercises as a condition of using the airport.

Fingerprint-Based Criminal History Records Checks (CHRC): Flightcrew 
Members

    Currently, under Sec. 1544.229, individuals with unescorted access 
to the security identification display area (SIDA), individuals with 
authority to perform screening functions, and individuals with 
authority to perform certain checked baggage and cargo functions must 
undergo a CHRC. New Sec. 1544.230 applies this same requirement to 
flightcrew members. ``Flightcrew member'' is defined in 14 CFR 1.1, and 
now in 49 CFR 1540.5, as a pilot, flight engineer, or flight navigator 
assigned to duty in an aircraft during flight time.
    It is important that TSA require additional background checks to be 
conducted on flightcrew who operate aircraft that could be used to 
endanger others. Congress has determined that fingerprint-based CHRCs 
are an important measure in checking the background of individuals who 
have access to aircraft. See 49 U.S.C. 44936. The use of CHRCs for 
flightcrew will provide an additional assurance that they are suitable 
to carry out essential duties in the aviation system.
    Section 1544.230 (a) states the scope of the section. It applies to 
each flightcrew member for each aircraft operator. Amendments to 
Secs. 1544.101 and 1544.103 make clear that Sec. 1544.230 is applicable 
to flightcrew members not only under a twelve-five program, but also 
flightcrew members for each aircraft operation under a full program, a 
partial program, or a private charter program, unless the individual is 
already subject to Sec. 1544.229. In considering what security measures 
to apply to the twelve-five operators, it was apparent that the 
enhanced security of a CHRC for flightcrew should apply to all 
operations in the larger aircraft. Most flightcrew members in 
operations under full security programs are now subject to CHRCs under 
Sec. 1544.229 because they need unescorted access to the SIDA to 
perform preflight inspections of their aircraft and other functions. 
Some flightcrew of all-cargo carriers also have undergone CHRCs because 
they operate in a SIDA, too. This rule, however, will require 
flightcrew members who operate under partial security programs or SFAR 
91 security programs and those that, until now, have not operated under 
security programs, to undergo CHRCs. Note that this rule does not 
specifically apply to flightcrew for operations under limited programs. 
If the limited program includes access to the SIDA, however, 
Sec. 1544.230 will be incorporated into the program.
    Under Sec. 1544.230, the aircraft operator must ensure that 
flightcrew members undergo a fingerprint-based CHRC that is largely the 
same as in Sec. 1544.229. See 66 FR 63474 (December 6, 2001) and the 
rule (docket number TSA-2002-11602) that adopts Sec. 1544.229 for a 
full discussion of these procedures.
    Aircraft operators that now hold partial programs or that will hold 
twelve-five programs have not, for the most part, been required to 
carry out CHRCs in the past. They must be provided with sufficient time 
to learn how to perform this function and make all necessary 
arrangements. On the other hand, Congress made clear in ATSA section 
132(a) that additional security measures must be implemented without 
undue delay. The compliance date for this section is December 6, 2002, 
which is intended to give sufficient time to perform this function 
without undue delay. This is the same date that operators under full 
programs must complete CHRCs on certain current employees. See 66 FR 
63474.

Flight Deck Privileges

    Section 1544.237 requires that each aircraft operator restrict 
access to the flight deck, as provided in its security program. There 
currently are restrictions on access to the flight deck, such as 14 CFR 
121.547, 121.548, and 121.550. After September 11, the FAA issued 
Security Directives to operators with full programs further restricting 
access to the flight deck to provide increased security for the 
flightcrew. The security program for all-cargo operators under SFAR 91 
also includes increased flight deck restrictions. ATSA clearly requires 
that the flight deck must have additional protections. See section 104. 
The increased security measures for access to the flight deck provide 
additional protection by limiting the opportunity for an individual to 
endanger the flightcrew members and thereby endanger the flight.
    This section incorporates such restrictions into the security 
program for each aircraft operator. Amendments to Secs. 1544.101 and 
1544.103 make clear that this section applies to all operators with 
full programs, partial programs, and twelve-five programs.
    Paragraph (b) makes clear that this section does not restrict 
access for an FAA air carrier inspector or an authorized representative 
of the National Transportation Safety Board under 14 CFR 121.547, 
121.548, 125.315, 125.317, or 135.75; or for an Agent of the United 
States Secret Service under 14 CFR 121.550. Further, this section does 
not restrict access for a Federal Air Marshal under Sec. 1544.223. Such 
individuals have essential safety and security duties and, if they are 
authorized in accordance with 14 CFR 121, 125, or 135, or 49 CFR 
1544.223, they must be admitted to the flight deck on request.

Carriage of Emergency Equipment in Alaska

    TSA is aware that in the state of Alaska, operators of some 
aircraft of the size covered by the twelve-five program are required to 
carry emergency equipment to use if they must make a forced landing at 
a remote site. Alaska has vast areas that are accessible only by air. 
If an aircraft is forced to land in that kind of area, it may take some 
time to locate. Wildlife can pose serious threats to individuals. 
Alaska law provides that aircraft must have emergency equipment on 
board, including such things as food for each occupant sufficient to 
sustain life for two weeks, an axe or hatchet, a firearm, a knife,

[[Page 8208]]

matches, and signaling devises such as smoke bombs. See Alaska Stat. 
section 02.35.110. While there are exemptions from some of these 
requirements for larger aircraft, some aircraft subject to the twelve-
five security program are required under Alaska law to have firearms, 
signaling devises, and other items that otherwise would not be 
permitted.
    TSA recognizes that travel in Alaska poses unique circumstances and 
dangers for which the aircraft operator must be prepared. Accordingly, 
TSA will approve amendments to the security programs of operators in 
Alaska to ensure that they may comply with Alaska law and carry 
emergency equipment for the safety of the passengers and crew.

Good Cause for Immediate Adoption

    This action is necessary to prevent a possible imminent hazard to 
aircraft and persons and property within the United States. Because the 
circumstances described herein warrant immediate action, Under 
Secretary of Transportation for Security finds that notice and public 
comment under 5 U.S.C. 553(b) are impracticable and contrary to the 
public interest.

Paperwork Reduction Act

    This emergency rule contains information collection activities 
subject to the Paperwork Reduction Act (44 U.S.C. 3507(d)). In 
accordance with the Paperwork Reduction Act, the paperwork burden 
associated with the rule will be submitted to the Office of Management 
and Budget (OMB) for review. As protection provided by the Paperwork 
Reduction Act, 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. The OMB control number 
for this information collection will be published in the Federal 
Register after it has been approved by the Office of Management and 
Budget.
    Need: This rule requires aircraft operators using aircraft with a 
maximum certificated takeoff weight of 12,500 pounds or more to 
implement an aviation security program.
    Description of Respondents: All new and existing aircraft operators 
using aircraft with a maximum certificated takeoff weight of 12,500 
pounds or more.
    Burden: TSA does not currently have concise data on which aircraft 
operators have aircraft 12,500 pounds or more. Accordingly, TSA will 
calculate the paperwork burden assuming that all aircraft operators 
will be subject to this rule. Thus, these assumptions will overestimate 
the overall burden. In addition, TSA assumes no change in the number of 
aircraft operators over the next 10 years. Without this simplifying 
assumption, it would be impossible to estimate the total effects of 
these changes over the ten-year period.
    Each air carrier subject to this rule will need to fingerprint all 
its flightcrew members; train all employees with security-related 
duties; acknowledge receipt of, and distribute, Security Directives and 
Information Circulars; and prepare, maintain, and accommodate 
modifications to a security program. The total ten-year burden is 
approximately 608,470 hours at a cost of $14,613,040. The annual burden 
sums to about 60,850 hours at a cost of $1,461,300.
    TSA anticipates that the regulated entities will have to purchase 
no additional equipment.

Economic Analyses

    This rulemaking action is taken under an emergency situation within 
the meaning of Section 6(a)(3)(D) of Executive Order 12866, Regulatory 
Planning and Review. It also is considered an emergency regulation 
under Paragraph 11g of the Department of Transportation (DOT) 
Regulatory Policies and Procedures. In addition, it is a significant 
rule within the meaning of the Executive Order and DOT's policies and 
procedures. No regulatory analysis or evaluation accompanies this rule. 
TSA has not assessed of whether this rule will have a significant 
economic impact on a substantial number of small entities as defined in 
the Regulatory Flexibility Act of 1980. When no notice of proposed 
rulemaking has first been published, the Regulatory Flexibility Act 
does not apply. TSA recognizes that this rule may impose significant 
costs on aircraft operators. An assessment will be conducted in the 
future. The current security threat requires, however, that operators 
take necessary measures to ensure the safety and security of their 
operations. This rule has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 13132, Federalism

    TSA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We determined that this action will 
not have a substantial direct effect on the States, or the relationship 
between the national Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, we have determined that this final rule does not have 
Federalism implications.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, are not considered unnecessary 
obstacles. The statute also requires consideration of international 
standards and where appropriate, that they be the basis for U.S. 
standards. TSA has assessed the potential effect of this rulemaking and 
has determined that it will impose the same costs on domestic and 
international entities and thus has a neutral trade impact.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995 is intended, among other things, to curb the 
practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Act requires each Federal agency to 
prepare a written statement assessing the effects of any Federal 
mandate in a proposed or final agency rule that may result in a $100 
million or more expenditure (adjusted annually for inflation) in any 
one year by State, local, and tribal governments, in the aggregate, or 
by the private sector; such a mandate is deemed to be a ``significant 
regulatory action.''
    The requirements of Title II of the Unfunded Mandates Reform Act of 
1995 do not apply when rulemaking actions are taken without the 
issuance of a notice of proposed rulemaking. Accordingly, TSA has not 
prepared a statement under the Act.

Environmental Analysis

    TSA has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

Energy Impact

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

[[Page 8209]]

List of Subjects

49 CFR Part 1540

    Air carriers, Aircraft, Airports, Law enforcement officers, 
Reporting and recordkeeping requirements, Security measures.

49 CFR Part 1544

    Air carriers, Aircraft, Aviation safety, Freight forwarders, 
Reporting and recordkeeping requirements, Security measures.

The Amendments

    For the reasons stated in the preamble, the Transportation Security 
Administration amends 49 CFR chapter XII as follows:

PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES

    1. The authority citation for part 1540 continues to read as 
follows:

    Authority: 49 U.S.C. 114, 5103, 40119, 44901-44907, 44913-44914, 
44916-44918, 44935-44936, 44942, 46105.


    2. Amend 1540.5 by adding the definition of ``Flightcrew member'' 
in alphabetical order as follows:


Sec. 1540.5  Terms used in this subchapter.

* * * * *
    Flightcrew member means a pilot, flight engineer, or flight 
navigator assigned to duty in an aircraft during flight time.
* * * * *

PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL 
OPERATORS

    3. The authority for part 1544 continues to read as follows:

    Authority: 49 U.S.C. 114, 5103, 40119, 44901-44905, 44907, 
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.


    4. Amend Sec. 1544.1 by revising paragraph (a)(1) to read as 
follows:


Sec. 1544.1  Applicability of this part.

    (a) * * *
    (1) The operations of aircraft operators holding operating 
certificates under 14 CFR part 119 for scheduled passenger operations, 
public charter passenger operations, private charter passenger 
operations; the operations of aircraft operators holding operating 
certificates under 14 CFR part 119 operating aircraft with a maximum 
certificated takeoff weight of 12,500 pounds or more; and other 
aircraft operators adopting and obtaining approval of an aircraft 
operator security program.
* * * * *

    5. Amend Sec. 1544.101 by revising paragraphs (c), (f), and (g), 
and by adding paragraphs (d) and (e) to read as follows:


Sec. 1544.101  Adoption and implementation.

* * * * *
    (c) Partial program-content: For operations described in paragraph 
(b) of this section, the aircraft operator must carry out the 
following, and must adopt and carry out a security program that meets 
the applicable requirements in Sec. 1544.103 (c):
    (1) The requirements of Secs. 1544.215, 1544.217, 1544.219, 
1544.223, 1544.230, 1544.235, 1544.237, 1544.301, 1544.303, and 
1544.305.
    (2) Other provisions of subparts C, D, and E of this part that TSA 
has approved upon request.
    (3) The remaining requirements of subparts C, D, and E when TSA 
notifies the aircraft operator in writing that a security threat exists 
concerning that operation.
    (d) Twelve-five program-adoption: Each aircraft operator must carry 
out the requirements of paragraph (e) of this section for each 
operation that meets all of the following--
    (1) Is in an aircraft with a maximum certificated takeoff weight of 
12,500 pounds or more;
    (2) Is in scheduled or charter service;
    (3) Is carrying passengers or cargo or both; and
    (4) Is not under a full program or partial program under paragraph 
(a) or (b) of this section.
    (e) Twelve-five program-contents: For each operation described in 
paragraph (d) of this section, the aircraft operator must carry out the 
following, and must adopt and carry out a security program that meets 
the applicable requirements of Sec. 1544.103 (c):
    (1) The requirements of Secs. 1544.215, 1544.217, 1544.219, 
1544.223, 1544.230, 1544.235, 1544.237, 1544.301(a) and (b), 1544.303, 
and 1544.305.
    (2) Other provisions of subparts C, D, and E that TSA has approved 
upon request.
    (3) The remaining requirements of subparts C, D, and E when TSA 
notifies the aircraft operator in writing that a security threat exists 
concerning that operation.
    (f) Private charter program: In addition to paragraph (d) of this 
section, if applicable, each aircraft operator must carry out 
Secs. 1544.201, 1544.207, 1544.209, 1544.213, 1544.215, 1544.217, 
1544.219, 1544.229, 1544.230, 1544.233, 1544.235, 1544.303, 1544.305, 
and subpart E, and must adopt and carry out a security program that 
meets the applicable requirements of Sec. 1544.103 for each private 
charter operation in which passengers are enplaned from or deplaned 
into a sterile area.
    (g) Limited program: In addition to paragraph (d) of this section, 
if applicable, TSA may approve a security program after receiving a 
request by an aircraft operator holding a certificate under 14 CFR part 
119, other than one identified in paragraph (a), (b), (d), or (f) of 
this section. The aircraft operator must--
    (1) Carry out selected provisions of subparts C, D, and E;
    (2) Carry out the provisions of Sec. 1544.305, as specified in its 
security program; and
    (3) Adopt and carry out a security program that meets the 
applicable requirements of Sec. 1544.103 (c).

    6. Amend Sec. 1544.103 by revising (c)(1), (c)(15), and adding 
(c)(21) to read as follows:


Sec. 1544.103  Form, content, and availability.

* * * * *
    (c) * * *
    (1) The procedures and description of the facilities and equipment 
used to comply with the requirements of Sec. 1544.201 regarding the 
acceptance and screening of individuals and their accessible property, 
including, if applicable, the carriage weapons as part of State-
required emergency equipment.
* * * * *
    (15) The procedures used to comply with the applicable requirements 
of Secs. 1544.229 and 1544.230 regarding fingerprint-based criminal 
history records checks.
* * * * *
    (21) The procedures used to comply with Sec. 1544.237 regarding 
flight deck privileges.
* * * * *

    7. Add Sec. 1544.230 to read as follows:


Sec. 1544.230  Fingerprint-based criminal history records checks 
(CHRC): Flightcrew members.

    (a) Scope. This section applies to each flightcrew member for each 
aircraft operator, except that this section does not apply to 
flightcrew members who are subject to Sec. 1544.229.
    (b) CHRC required. Each aircraft operator must ensure that each 
flightcrew member has undergone a fingerprint-based CHRC that does not 
disclose that he or she has a disqualifying criminal offense, as 
described in Sec. 1544.229(d), before allowing that individual to serve 
as a flightcrew member.
    (c) Application and fees. Each aircraft operator must ensure that 
each flightcrew member's fingerprints are obtained and submitted as 
described in Sec. 1544.229 (e) and (f).
    (d) Determination of arrest status. (1) When a CHRC on an 
individual

[[Page 8210]]

described in paragraph (a) of this section discloses an arrest for any 
disqualifying criminal offense listed in Sec. 1544.229(d) without 
indicating a disposition, the aircraft operator must determine, after 
investigation, that the arrest did not result in a disqualifying 
offense before the individual may serve as a flightcrew member. If 
there is no disposition, or if the disposition did not result in a 
conviction or in a finding of not guilty by reason of insanity of one 
of the offenses listed in Sec. 1544.229(d), the flight crewmember is 
not disqualified under this section.
    (2) When a CHRC on an individual described in paragraph (a) of this 
section discloses an arrest for any disqualifying criminal offense 
listed in Sec. 1544.229(d) without indicating a disposition, the 
aircraft operator must suspend the individual's flightcrew member 
privileges not later than 45 days after obtaining a CHRC, unless the 
aircraft operator determines, after investigation, that the arrest did 
not result in a disqualifying criminal offense. If there is no 
disposition, or if the disposition did not result in a conviction or in 
a finding of not guilty by reason of insanity of one of the offenses 
listed in Sec. 1544.229(d), the flight crewmember is not disqualified 
under this section.
    (3) The aircraft operator may only make the determinations required 
in paragraphs (d)(1) and (d)(2) of this section for individuals whom it 
is using, or will use, as a flightcrew member. The aircraft operator 
may not make determinations for individuals described in 
Sec. 1542.209(a) of this chapter.
    (e) Correction of FBI records and notification of disqualification. 
(1) Before making a final decision to deny the individual the ability 
to serve as a flightcrew member, the aircraft operator must advise the 
individual that the FBI criminal record discloses information that 
would disqualify the individual from serving as a flightcrew member and 
provide the individual with a copy of the FBI record if the individual 
requests it.
    (2) The aircraft operator must notify the individual that a final 
decision has been made to allow or deny the individual flightcrew 
member status.
    (3) Immediately following the denial of flightcrew member status, 
the aircraft operator must advise the individual that the FBI criminal 
record discloses information that disqualifies him or her from 
retaining his or her flightcrew member status, and provide the 
individual with a copy of the FBI record if he or she requests it.
    (f) 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 or her record, 
subject to the following conditions--
    (1) Within 30 days after being advised that the criminal record 
received from the FBI discloses a disqualifying criminal offense, the 
individual must notify the aircraft operator in writing of his or her 
intent to correct any information he or she believes to be inaccurate. 
The aircraft operator must obtain a copy, or accept a copy from the 
individual, of the revised FBI record or a certified true copy of the 
information from the appropriate court, prior to allowing the 
individual to serve as a flightcrew member.
    (2) If no notification, as described in paragraph (f)(1) of this 
section, is received within 30 days, the aircraft operator may make a 
final determination to deny the individual flightcrew member status.
    (g) Limits on the dissemination of results. Criminal record 
information provided by the FBI may be used only to carry out this 
section. No person may disseminate the results of a CHRC to anyone 
other than--
    (1) The individual to whom the record pertains, or that 
individual's authorized representative.
    (2) Others designated by TSA.
    (h) Recordkeeping. (1) Fingerprint application process. The 
aircraft operator must physically maintain, control, and, as 
appropriate, destroy the fingerprint application and the criminal 
record. Only direct aircraft operator employees may carry out the 
responsibility for maintaining, controlling, and destroying criminal 
records.
    (2) Protection of records. The records required by this section 
must be maintained by the aircraft operator in a manner that is 
acceptable to TSA that protects the confidentiality of the individual.
    (3) Duration. The records identified in this section with regard to 
an individual must be made available upon request by TSA, and 
maintained by the aircraft operator until 180 days after the 
termination of the individual's privileges to perform flightcrew member 
duties with the aircraft operator. When files are no longer maintained, 
the aircraft operator must destroy the CHRC results.
    (i) Continuing responsibilities. (1) Each flightcrew member 
identified in paragraph (a) of this section who has a disqualifying 
criminal offense must report the offense to the aircraft operator 
within 24 hours of the conviction or the finding of not guilty by 
reason of insanity.
    (2) If information becomes available to the aircraft operator 
indicating that a flightcrew member identified in paragraph (a) of this 
section has a possible conviction for any disqualifying criminal 
offense in Sec. 1544.229 (d), the aircraft operator must determine the 
status of the conviction. If a disqualifying criminal offense is 
confirmed, the aircraft operator may not assign that individual to 
flightcrew duties in operations identified in paragraph (a).
    (j) Aircraft operator responsibility. The aircraft operator must--
(1) Designate a direct employee to maintain, control, and, as 
appropriate, destroy criminal records.
    (2) Designate an individual(s) to maintain the CHRC results.
    (3) Designate an individual(s) at appropriate locations to receive 
notification from individuals of their intent to seek correction of 
their FBI criminal record.
    (k) Compliance date. Each aircraft operator must comply with this 
section for each flightcrew member described in paragraph (a) of this 
section not later than December 6, 2002.

    8. Add Sec. 1544.237 to subpart C to read as follows:


Sec. 1544.237  Flight deck privileges.

    (a) For each aircraft that has a door to the flight deck, each 
aircraft operator must restrict access to the flight deck as provided 
in its security program.
    (b) This section does not restrict access for an FAA air carrier 
inspector, an authorized representative of the National Transportation 
Safety Board, or for an Agent of the United States Secret Service, 
under 14 CFR parts 121, 125, or 135. This section does not restrict 
access for a Federal Air Marshal under this part.

    Issued in Washington, DC on February 15, 2002.
John W. Magaw,
Under Secretary of Transportation for Security.
[FR Doc. 02-4235 Filed 2-19-02; 10:09 am]
BILLING CODE 4910-62-P