[Federal Register Volume 67, Number 145 (Monday, July 29, 2002)]
[Rules and Regulations]
[Pages 48977-48988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19055]


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DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Part 122

[T.D. 02-40]
RIN 1515-AD04


Access to Customs Security Areas at Airports

AGENCY: U.S. Customs Service, Department of the Treasury.

ACTION: Interim regulations; solicitation of comments.

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SUMMARY: This document sets forth interim amendments to those 
provisions of the Customs Regulations that concern standards for 
employee access to Customs security areas at airports that accommodate 
international air commerce. The principal amendments set forth in this 
document involve the addition of a biennial access approval 
reapplication requirement, an expansion of the grounds for denial of an 
application for access, the addition of a requirement that each 
employee granted access must report to Customs certain changes in the 
employee's circumstances, the inclusion of several new employer 
responsibilities, an expansion of the grounds for revocation or 
suspension of access, the inclusion of separate procedures for 
immediate revocation or suspension of access and for proposed 
revocation or suspension of access, and a limitation of the opportunity 
to have a hearing in a revocation or suspension action to only cases in 
which there is a genuine issue regarding a material fact. These changes 
are needed to enhance the security environment at airports in Customs 
security areas and are commensurate with the heightened enforcement 
posture of the Federal Government following the September 11, 2001, 
terrorist attacks on the United States.

DATES: Interim rule effective July 29, 2002; comments must be submitted 
by September 27, 2002.

ADDRESSES: Written comments are to be addressed to the U.S. Customs 
Service, Office of Regulations and Rulings, Attention: Regulations 
Branch, 1300 Pennsylvania Avenue NW., Washington, DC 20229. Submitted 
comments may be inspected at U.S. Customs Service, 799 9th Street NW., 
Washington, DC.

FOR FURTHER INFORMATION CONTACT: Elizabeth Tritt, Passengers Programs, 
Office of Field Operations (202-927-0530).

SUPPLEMENTARY INFORMATION:

Background

    On February 3, 1986, Customs published in the Federal Register (51 
FR 4161) T.D. 86-12 setting forth an amendment to the Customs 
Regulations to require the use and display of a Customs-approved 
identification card, strip, or seal on identification cards worn by 
employees at airports accommodating international air commerce. This 
Customs-approved identification requirement applies to all persons 
(other than government law enforcement personnel) who are located at, 
or operate out of, or are employed by, affected airports and who 
request access to Customs security areas in order to perform functions 
associated with their employment. Those regulatory requirements were 
originally contained in Sec. 6.12a of the Customs Regulations (19 CFR 
6.12a) but are currently set forth as Subpart S of part 122 of the 
Customs Regulations (19 CFR part 122).
    In the preamble portion of T.D. 86-12 Customs explained the need 
for, and purpose of, those regulatory provisions as follows: ``Customs 
finds it necessary to improve integrity and security in authorized 
inspection areas, due in large measure to the recent sharp increases in 
threats to airport security posed by terrorist organizations. The 
current regulations in 19 CFR part 6 are inadequate for controlling 
access to the Customs security areas to the extent necessary. The 
arrival of an aircraft from abroad necessitates the services of 
numerous persons representing various specialties, such as ground 
crews, refueling personnel, baggage handlers, and food service 
personnel, among others. While all of these persons may have legitimate 
business associated with the arrival of an international flight, 
Customs needs a method by which access to the aircraft and inspection 
areas will be restricted, as well as some assurance that the service 
personnel themselves have been found trustworthy by their employers. 
While the Federal Aviation Administration has general responsibility 
for security at airports, Customs has determined that it is necessary 
to amend 19 CFR part 6 to provide Customs with the needed authority and 
procedures to achieve these goals at the areas under the Customs 
jurisdiction. The purpose of this amendment is to establish an 
identification system for all employees whose duties require access to 
Customs security areas at airports handling international air commerce, 
with the exception of uniformed Federal, State, and local law 
enforcement personnel. Because of recent terrorist incidents at foreign 
airports, threats of violence at U.S. airports, and in an effort to 
improve the security of these areas by restricting access to authorized 
employees, Customs will require that employees apply for a Customs 
approved identification strip or seal to be affixed to existing 
identification cards once an authorized official of the employer 
attests that background checks of employment history have been 
conducted. Customs will issue the identification strip or seal, once 
satisfied that the issuance of the additional identification will 
neither endanger the revenue nor threaten the security of the entire 
security area (which may include the arriving airplane, ramp area, and 
Customs

[[Page 48978]]

baggage and passenger inspection facilities).''
    The regulatory provisions contained in Subpart S of part 122 prior 
to the publication of this document consisted of Secs. 122.181 through 
122.188 (19 CFR 122.181 through 122.188) which may be summarized as 
follows:
    Section 122.181 set forth a definition of the term ``Customs 
security area;''
    Section 122.182 set forth the basic identification card, strip, or 
seal requirement (paragraph (a)), outlined certain employer 
responsibilities (paragraph (b)), set forth identification card, strip, 
or seal application procedures and employer bond requirements 
(paragraph (c)), provided for background checks of applicants 
(paragraph (d)), provided for the issuance of identification cards, 
strips, or seals to law enforcement officers and other Federal, State, 
and local officials without applying the paragraph (c) and paragraph 
(d) requirements (paragraph (e)), prescribed standards for the issuance 
of replacement identification cards, strips, and seals (paragraph (f)), 
and set forth standards for notifying Customs and surrendering the 
identification card, strip, or seal when it was no longer needed 
(paragraph (g));
    Section 122.183 dealt with the denial of applications for access 
and included provisions regarding grounds for denial (paragraph (a)), 
notification of denial (paragraph (b)), appeal of denial (paragraph 
(c)), and further appeal of denial (paragraph (d));
    Section 122.184 provided for removal of the identification card, 
strip, or seal from the employee where, for security reasons, a change 
in the nature of the identification was necessary;
    Section 122.185 required a prompt written report in the event of a 
loss or theft of an identification card, strip, or seal and provided 
for replacement in accordance with Sec. 122.182(f);
    Section 122.186 provided for the removal and destruction of an 
identification card, strip, or seal that was presented by a person 
other than the one to whom it was issued and also provided that an 
approved identification card, strip, or seal may be removed from an 
employee by any Customs officer designated by the port director;
    Section 122.187 covered the revocation or suspension of access and 
included grounds for revocation or suspension (paragraph (a)), provided 
for giving notice of the revocation or suspension to the employee with 
a copy to the employer (paragraph (b)), permitted the employee to file 
a written notice of appeal and to request a hearing in the notice of 
appeal (paragraph (c)), set forth rules for the conduct of a hearing 
(paragraph (d)), permitted the employee to submit additional written 
views after the hearing had been held (paragraph (e)), and provided for 
issuance and service of the decision after the hearing (paragraph (f)); 
and
    Section 122.188 concerned temporary identification cards, strips, 
and seals and included provisions regarding the conditions for issuance 
of a temporary card, strip, or seal (paragraph (a)), the period of 
validity of the temporary card, strip, or seal (paragraph (b)), the 
application of the section to temporary employees and official visitors 
(paragraph (c)), and the revocation of a temporary card, strip, or seal 
and denial of temporary access (paragraph (d)).

The Need for Increased Security Enforcement Measures

    The September 11, 2001, terrorist attacks involving four U.S. 
commercial aircraft underscored the importance of a properly maintained 
security environment at the nation's airport facilities. The nature of 
the attacks, which involved the use of aircraft as weapons against 
persons and property in the United States, and the nature of the 
perpetrators, who are believed to be affiliated with a terrorist 
organization that has an almost global network and that has declared 
its opposition to U.S. foreign policy and presence in the Middle East 
and its intention to engage in further attacks against the United 
States, support the conclusion that there is now, if anything, an even 
greater need for security precautions at airports than there was when 
the regulations described above were promulgated.
    On December 6, 2001, the Federal Aviation Administration (FAA) 
published in the Federal Register (66 FR 63474) a final rule document 
entitled ``Criminal History Records Checks'' which amended its 
regulations to require each airport operator and each aircraft operator 
that has adopted a security program under 14 CFR part 107 or 14 CFR 
part 108 to conduct fingerprint-based criminal history record checks 
(CHRCs) for individuals if they have not already undergone CHRCs. These 
FAA rules, which took effect on the date of publication, apply to those 
who either have, or apply for, (1) unescorted access authority to the 
Security Identification Display Area (SIDA) of an airport, (2) 
authority to authorize others to have unescorted access to the SIDA, 
and (3) passenger and carry-on property screening functions. In the 
background portion of this final rule document the FAA first noted the 
September 11, 2001, terrorist attacks and related potential threats to 
U.S. civil aviation. The FAA went on to explain that the new rules were 
necessary because the current employment investigation method was not 
adequate, in particular, because the present method did not require 
CHRCs for all individuals. The FAA also noted that, by requiring that 
all employees in the specified positions undergo a CHRC based on their 
fingerprints, there may be some individuals who now are in the covered 
positions who will be disqualified under the resulting new checks.
    Following the September 11, 2001, terrorist attacks, Customs 
similarly initiated a review of the security standards and procedures 
that apply for purposes of access to the Customs security areas at 
airports that accommodate international air commerce. That review 
included, among other things, a review of the existing regulatory 
standards and an expanded fingerprinting and associated criminal record 
checks of individuals currently having authorized access to a Customs 
security area. The review disclosed a number of problems that require 
immediate regulatory solutions in order to enable Customs to maintain 
an enhanced security environment at airports in those areas over which 
Customs must exercise some jurisdiction regarding access. The principal 
identified problem areas and solutions are as follows:
    1. Problem: The grounds for denial of applications for access do 
not adequately reflect security considerations and, particularly as 
regards the applicant's criminal history, are not sufficiently 
specific. Solution: The regulations should contain, as a basis for 
denial of access, a general statement regarding risk to public health, 
interest or safety, national security, or aviation safety. In addition, 
the regulations should amplify the criminal history grounds for denial 
of access by including, for example, the detailed list of aircraft-
related and other specific violations listed in 14 CFR 107.209 and 14 
CFR 108.229 as published by the FAA in the December 6, 2001, final rule 
document referred to above.
    2. Problem: The present regulations do not provide an adequate 
legal framework for ongoing security enforcement regarding the conduct 
of employees who have access to the Customs security area, particularly 
with regard to events that occur after the application for approved 
access has been granted. Solution: The regulations should (1) 
affirmatively state the obligation of the employee to use the approved 
access only in furtherance of

[[Page 48979]]

his employment, (2) impose on an employee with approved access an 
ongoing obligation to inform Customs of any change in circumstances 
(for example an arrest or conviction) that would be a ground for denial 
or revocation or suspension of access and to inform Customs if the 
employee's access to the SIDA has been suspended under the FAA 
regulations, and (3) add as grounds for revocation or suspension of 
access a failure to comply with any of the foregoing requirements. In 
addition, the regulations should impose an obligation on the employer 
to report to Customs any change in an employee's circumstances that 
could affect his right to have access and also to ensure that each 
employee uses the approved access only in connection with his 
employment. A failure on the part of the employer to comply with these 
requirements could result in a claim for liquidated damages under the 
employer's bond.
    3. Problem: The procedures for revocation or suspension of an 
employee's approved access to the Customs security area constitute an 
obstacle to enhanced security initiatives because they are inefficient, 
time consuming and burdensome, in principal part due to a provision in 
the regulations that gives the employee an absolute right to a hearing 
in connection with an appeal of a revocation or suspension action, even 
where there is no substantial issue of a material fact to be addressed 
at the hearing. At a number of locations where Customs performed 
fingerprinting and associated criminal record checks which disclosed 
grounds for a revocation or suspension action, in almost every case the 
affected employee requested a hearing, thus delaying the time at which 
the employee would lose access (and therefore extending the security 
risk) and straining the personnel and fiscal resources of Customs due 
to the costs associated with conducting a formal hearing. Solution: The 
regulations should (1) limit hearings on appeals to those cases in 
which there is a genuine issue of fact that is material to the 
revocation or suspension action, similar to the procedure used in 
courts of law whereby cases involving no issues of fact but rather only 
issues regarding the construction of the law are resolved in summary 
fashion on the written pleadings and without oral argument, (2) provide 
for issuance of access approval for a limited period of time and for 
reissuance only upon reapplication for a new period, with the new 
application (which may include fingerprinting and associated criminal 
record checks) being subject to de novo review, and (3) provide for 
immediate revocation or suspension of access in emergency situations 
involving public health, safety, or security, whether or not the 
affected employee would be entitled to a hearing upon appeal.
    Accordingly, this document sets forth amendments to Subpart S of 
Part 122 of the Customs Regulations in order to address the problems 
discussed above, and the document also includes a number of other 
changes not related to security concerns that also represent 
improvements to those regulatory texts. Similar to the approach taken 
by the FAA in the December 6, 2001, final rule document referred to 
above, Customs believes that the immediate and ongoing significance of 
these security considerations requires that the regulatory amendments 
take effect on the date of publication in the Federal Register even 
though the document affords the public an opportunity to comment on the 
regulatory changes prior to publication of a final rule. The regulatory 
amendments are explained in more detail below except in the case of 
changes that involve merely minor, non-substantive wording changes.

Explanation of Regulatory Amendments

    Before proceeding to a section-by-section discussion of the 
substantive amendments, it should be noted that throughout the texts 
the words ``identification card, strip, or seal'' and all variations of 
those words have been replaced by the words ``Customs access seal'' or 
``access seal.'' This change in terminology is simply intended to 
reflect current practice whereby, upon approval of an application for 
access to the Customs security area, Customs places a seal on a card or 
other identification medium issued either by Customs or by the airport 
authority, air carrier or other employer of the employee to whom access 
is granted.

Section 122.181

    In the first sentence the words ``or departing to'' have been added 
after the words ``arriving from'' to clarify that the Customs security 
area also includes airport areas that accommodate outgoing aircraft.

Section 122.182

    Paragraph (a) has been revised to incorporate the following 
changes:
    1. In the first sentence, a reference to ``aircraft passengers and 
crew'' has been added to reflect the Customs practice of not requiring 
those persons to apply for approved access, because those persons 
normally pass through the Customs security area only when going to or 
from an aircraft.
    2. The second sentence has been modified by the addition of a 
requirement that the approved Customs access seal must be used only in 
furtherance of the employment of the person in whose name it is issued, 
in accordance with the description of duties submitted by the employer 
under paragraph (c)(1) of the section, for the reason explained above.
    3. In the third sentence, references to immediate surrender of a 
Customs access seal ``as provided in paragraph (g) of the section'' 
(that is, when the access seal is simply no longer needed by the 
employee) and ``for any cause referred to in Sec. 122.187(a)'' (that 
is, in connection with a revocation or suspension action) have been 
added to clarify that there are two contexts under the regulations 
which provide for the surrender of a Customs access seal.
    4. Two new sentences have been added at the end to prescribe a 2-
year validity period for an approved Customs access seal and to provide 
for retention beyond the applicable 2-year period only if a new 
application is filed under paragraph (c)(2) of the section.
    In paragraph (b), which concerns employers' responsibilities, the 
references to bond liability have been removed because they can be more 
appropriately dealt with elsewhere (see the discussion of new 
Sec. 122.189 below).
    Paragraph (c), which sets forth access application requirements, 
has also been revised in order to set forth the prior text as paragraph 
(c)(1) headed ``initial application'' and in order to add a new text as 
paragraph (c)(2) headed ``reapplication.'' The following points are 
noted regarding the revised text:
    1. In the first sentence of paragraph (c)(1), a requirement has 
been added regarding submission of a written request and justification 
for issuance prepared by the applicant's employer which must include a 
description of the duties to be performed by the employee while in the 
Customs security area. Customs believes that this requirement is 
necessary and appropriate because it (1) more clearly addresses the 
relationship of the applicant to the employer whose business affairs 
require the employee access, (2) provides additional relevant 
information to assist Customs in making an informed decision on the 
application, and (3) will assist Customs in monitoring the employee's 
activities within the Customs security area to determine whether they 
are necessary and proper.
    2. At the end of paragraph (c)(1), a sentence has been added to 
cover the submission of fingerprints, proof of

[[Page 48980]]

citizenship or residency, and a photograph. These requirements, which 
were previously in paragraph (d) (which concerns background checks), 
have been moved to this paragraph because they are more directly 
related to the application submission process.
    3. Paragraph (c)(2) sets forth requirements concerning the new 
reapplication procedure which must be initiated at least 30 days before 
the end of the 2-year approval validity period prescribed in paragraph 
(a) if the employee wishes to retain the approved Customs access seal 
beyond that 2-year period. The 30-days minimum reapplication period was 
chosen in order to ensure that Customs will have enough time to review 
and make a decision on the application before the current validity 
period lapses. This new paragraph (c)(2) provides that the new 
application must be filed in the same manner as that specified for an 
initial application under paragraph (c)(1), including the submission of 
fingerprints if required by the port director, and that the new 
application will be subject to a de novo review (which may include a 
background check) as if it were an initial application except that the 
employer's attestation under paragraph (d) will not be required if 
there has been no change in the applicant's employment.
    Paragraph (d), which concerns background checks, has been revised 
in order to (1) remove the reference in the first sentence to employees 
hired on or after November 1, 1985, (2) remove the third sentence 
regarding employees hired before November 1, 1985, and (3) reflect the 
transfer of the fingerprint and proof of citizenship or residency 
provisions to paragraph (c) as discussed above. The removal of the 
provisions regarding the November 1, 1985, date is necessary because 
those provisions are out-of-date and because the effect of these 
provisions, which is to ``grandfather-in'' employees hired before that 
date as regards the type of employer attestation that must be made, is 
incompatible with the present heightened security enforcement posture 
of Customs as reflected in the other regulatory changes contained in 
this document. Customs further notes that those November 1, 1985, 
provisions also may not be compatible with the new background check 
requirements reflected in the December 6, 2001, FAA regulatory changes 
referred to above.
    In paragraph (g), the first sentence (which provides that employers 
must give notice to Customs and surrender access seals to Customs when 
they are no longer needed by their employees) has been amended to also 
require notice and surrender where the 2-year approval validity period 
under paragraph (a) has expired and a new application under paragraph 
(c)(2) has not been approved, because Customs believes that this is 
also consistent with the principle that employers must bear some 
responsibility for ensuring the proper use of access seals by their 
employees, and the words ``who no longer requires access'' at the end 
of the second sentence have been removed to conform to the new wording 
of the first sentence. In addition, the penultimate sentence of the 
prior text (which concerned the filing of a summary of information 
regarding the disposition of access seals on a quarterly or other basis 
established by the port director) has been removed, see the discussion 
below regarding new paragraph (c) of Sec. 122.184. Finally, the last 
sentence of the prior text (which allowed an employee to return to 
duties in the Customs security area within 1 year without having to 
file an application under paragraph (c)) has been removed because 
Customs now believes that an application should be required in that 
case.

Section 122.183

    Paragraph (a), which concerns grounds for the denial of access to 
the Customs security area, has been revised primarily in order to 
address the first principal problem area discussed earlier in this 
document. The following points are noted regarding the changes 
reflected in the revised text:
    1. In the introductory text of the paragraph, the words ``or pose 
an unacceptable risk to public health, interest or safety, national 
security, or aviation safety'' have been added after the words 
``endanger the revenue or the security of the area.''
    2. In paragraph (a)(1), which refers to any cause which would 
justify suspension or revocation under Sec. 122.187, references to ``a 
demand for surrender'' and to ``Sec. 122.182(g)'' have been added to 
clarify (1) that Sec. 122.187 refers not only to suspension or 
revocation of access but also to the surrender of the access seal and 
(2) that the surrender of access seals is also the subject of 
Sec. 122.182(g). With regard to the latter point, it is noted that 
under the amended texts a failure to surrender an access seal, if 
demanded by Customs because the new 2-year approval period has expired 
and no new application has been approved, would constitute a basis for 
denial under this provision.
    3. In paragraph (a)(2), which under the prior paragraph (a) text 
was the only other listed ground for denial and referred specifically 
to evidence of a pending or past investigation which establishes 
criminal, or dishonest conduct, or a verified record of such conduct, 
the words ``which establishes * * * such conduct'' have been replaced 
by the words ``establishing probable cause to believe that the 
applicant has engaged in any conduct which relates to, or which could 
lead to a conviction for, a disqualifying offense listed under 
paragraph (a)(4) of this section.'' This wording change was made in 
consideration of the addition of new paragraph (a)(4) discussed below, 
and it is noted in this regard that, with the addition of that new 
paragraph and new paragraph (a)(3) discussed below, the ``probable 
cause'' standard appears to be more appropriate in the instant context.
    4. A new paragraph (a)(3) has been added which refers to a case in 
which an applicant has been arrested for, or charged with, a 
disqualifying offense listed under paragraph (a)(4) and disposition of 
the arrest or charge is pending. Customs believes that this paragraph 
is necessary to fill in the gap between the investigation stage 
described in revised paragraph (a)(2) and the disqualifying offense 
stage described in new paragraph (a)(4). It is also noted that the FAA 
regulations adopted in the December 6, 2001, final rule document 
referred to above contain provisions of similar effect (see 14 CFR 
107.209(g)(1) and 14 CFR 108.229(g)(1)).
    5. A new paragraph (a)(4) has been added which lists, as grounds 
for denial, disqualifying offenses which an applicant has been 
convicted of, or found not guilty of by reason of insanity, or has 
committed any act or omission involving, during the 14 preceding 5-year 
period (or any longer period as may be appropriate in a specific case) 
prior to the application or at any time while in possession of a 
Customs access seal. This paragraph was added to Sec. 122.183 because 
Customs believes that the issue of established criminal conduct is 
appropriate for detailed treatment in an application context, and it is 
noted that under the prior Part 122 texts specific felony or 
misdemeanor conviction references were contained only in the context of 
revocation or suspension actions under Sec. 122.187. The paragraph 
parallels the FAA approach reflected in the December 6, 2001, final 
rule document in referring to a ``disqualifying'' offense, in covering 
applicants found not guilty by reason of insanity, in referring to 
offenses both in the pre-application period and while having approved 
access, and in setting forth a detailed list of specific disqualifying 
offenses, including a

[[Page 48981]]

number of offenses relating directly to aircraft under Title 49 of the 
United States Code, for which access may be denied (see 14 CFR 
107.209(d) and 14 CFR 108.229(d)). Customs believes that it is useful, 
wherever practicable, to use similar standards as those of the FAA 
since the need to address security concerns at airports is universal 
and the same people will be given access to areas at airports that are 
concentric or overlapping under the separate approval regimes of the 
two agencies. However, because the mission of Customs is not in all 
cases the same as that of the FAA, the new paragraph (a)(4) text also 
lists some additional offenses not included in the FAA regulations, 
including offenses that relate directly to a Customs statutory 
enforcement mandate.
    6. A new paragraph (a)(5) has been added which sets forth as a 
ground for denial the fact that an applicant was denied unescorted 
access authority to an SIDA, or had his unescorted access authority to 
an SIDA suspended, pursuant to regulations of the FAA or other 
government agency. As in the case of new paragraph (a)(4) discussed 
above, this provision reflects the fact that there are security 
considerations that are common to Customs and to the FAA. Accordingly, 
if the FAA denies an application for unescorted access to an SIDA or 
suspends a person's access to an SIDA and Customs is aware of the FAA 
action, Customs must deny that person's application for access to the 
Customs security area because (1) the basic security concerns reflected 
in the FAA action would also apply in a Customs security area context 
and (2) granting the application, and thus allowing the person into the 
Customs security area, would be incompatible with the FAA action from 
an operational standpoint.
    7. Finally, a new paragraph (a)(6) has been added to set forth as a 
ground for denial the fact that neither the employer nor Customs is 
able to complete a meaningful background check or investigation of the 
applicant because relevant records do not exist or are not available. 
Customs believes that this provision is necessary because the granting 
of an application should represent a knowledgeable, informed decision 
and thus should not be made in circumstances where there is a lack of 
relevant records. Thus, for example, an application could be denied if 
the applicant has not lived in the United States for a period of time 
sufficiently long for Customs to make a meaningful verification of any 
U.S. criminal history and a similar records check in the applicant's 
prior country of residence cannot be made.
    In paragraph (c), which concerns the appeal of a denial, the last 
sentence has been revised to require the port director to advise the 
applicant of the procedures for filing a further appeal if the 
application is denied on appeal.
    Paragraph (d), which concerns the further appeal of a denial, has 
been revised primarily in order to replace the references to the 
Commissioner (or his designee) with references to the director of field 
operations at the Customs Management Center having jurisdiction over 
the office of the port director who denied the application under 
paragraph (b) and considered the first appeal under paragraph (c). 
Thus, the further appeal of the denial would no longer be considered at 
Customs Headquarters in Washington, DC.

Section 122.184

    The section heading has been revised and the prior section text has 
been designated as paragraph (a) in order to accommodate the addition 
of new paragraphs (b) and (c).
    New paragraph (b), which is headed ``change in circumstances of 
employee,'' imposes on an employee who has approved access to the 
Customs security area an obligation to advise the port director in 
writing in the following cases: (1) Within 24 hours, if a circumstance 
arises that constitutes a ground for denial of access or for revocation 
or suspension of access and surrender of the employee's Customs access 
seal; (2) within 5 calendar days, if the employee was arrested or 
prosecuted for a disqualifying offense and there is a final disposition 
of that arrest or prosecution; and (3) within 24 hours, if the 
employee's unescorted access authority to an SIDA is suspended pursuant 
to the regulations of the FAA or other government agency. Customs 
believes that these new requirements, which impose an ongoing 
obligation on the part of each person granted access to the Customs 
security area to advise Customs of changes that might affect that 
person's access privilege, are appropriate and necessary for the 
security of the areas under Customs control. Customs also notes that a 
similar ongoing reporting requirement regarding disqualifying offenses 
is contained in the FAA regulations adopted in the December 6, 2001, 
final rule document referred to above (see 14 CFR 107.209(l)(2) and 14 
CFR 108.229(l)(2)).
    New paragraph (c), which is headed ``additional employer 
responsibilities,'' sets forth employer responsibilities that are in 
addition to those specified for employers under Sec. 122.182. The first 
sentence requires an employer to report to Customs any known change in 
an employee's circumstances referred to in new paragraph (b), even if 
the employee also reports it under paragraph (b); even though this 
results in a duplicate reporting requirement, Customs believes that 
this result is justifiable because the overriding consideration is that 
Customs must have the information in question in order to properly 
assess the security risk and thus should not have to decide whether one 
possible source of the information is more appropriate than another. 
The second and third sentences set forth a quarterly reporting 
requirement regarding employees who have an approved access seal, 
including additions to and deletions from the previous report, and in 
effect replace the quarterly reporting requirement which has been 
removed from paragraph (g) of Sec. 122.182 as discussed above. The 
fourth and final sentence, which requires each employer to take 
appropriate steps to ensure that an employee uses an approved Customs 
access seal only for employment-related purposes, is a corollary to the 
employee requirement added to the second sentence of paragraph (a) of 
Sec. 122.182 as discussed above.

Section 122.187

    Paragraph (a), which concerns the grounds for revocation or 
suspension of access to the Customs security area, has been divided 
into two subparagraphs, with paragraph (a)(1) constituting an expanded 
general statement regarding revocation or suspension and paragraph 
(a)(2) setting forth revised specific grounds for revocation or 
suspension. The following points are noted regarding the revised 
paragraph (a) texts:
    1. Paragraph (a)(1)(i) requires the port director to immediately 
revoke or suspend an employee's access to the Customs security area and 
demand the immediate surrender of the employee's approved Customs 
access seal for any ground specified in paragraph (a)(2).
    2. Paragraph (a)(1)(ii) authorizes the port director to propose the 
revocation or suspension of an employee's access to the Customs 
security area and the surrender of the employee's approved Customs 
access seal whenever in the judgment of the port director it appears, 
for any ground not specified in paragraph (a)(2), that continued access 
might ``pose an unacceptable risk to public health, interest or safety, 
national security, aviation safety, the revenue, or the security of the 
area.'' The quoted language parallels the wording of the introductory 
text of revised paragraph (a) of Sec. 122.183 regarding access 
application denials and in effect

[[Page 48982]]

replaces prior paragraph (a)(4) of Sec. 122.187 which referred to a 
circumstance in which continuation of privileges would ``endanger the 
revenue or security of the area.''
    3. Paragraph (a)(2)(i) refers to an approved Customs access seal 
obtained through fraud or the misstatement of a material fact and thus 
corresponds to prior paragraph (a)(1). However, a reference to 
``probable cause to believe'' has been added to the text because, given 
the priority that must be given to matters involving airport security, 
Customs believes that probable cause to believe (rather than actual 
proof of the fact) is the proper standard. Customs further notes in 
this regard that an employee's rights can be appropriately protected by 
the appeal procedure which affords the employee an opportunity to have 
a hearing if there is a genuine issue of fact that is material to the 
action taken by Customs.
    4. Paragraph (a)(2)(ii) refers to employees convicted of crimes and 
thus corresponds to prior paragraph (a)(2). However, the new text 
differs from the prior text by (1) including a reference to an employee 
``found not guilty by reason of insanity,'' (2) including ``probable 
cause to believe'' language, and (3) replacing the recitation of 
specific crimes by a cross-reference to ``an offense listed in 
Sec. 122.183(a)(4).'' This text reflects the view of Customs that the 
commission of any ``disqualifying offense'' on which a denial of an 
application for access may be based under revised paragraph (a) of 
Sec. 122.183 also should be a basis for revocation or suspension of 
access and surrender of the Customs access seal under Sec. 122.187.
    5. Paragraph (a)(2)(iii), which has no counterpart in the prior 
texts, refers to an employee who has been arrested for, or charged 
with, an offense listed in Sec. 122.183(a)(4) and prosecution or other 
disposition of the arrest or charge is pending. It thus parallels the 
application denial terms of new paragraph (a)(3) of Sec. 122.183.
    6. Paragraph (a)(2)(iv), which has no counterpart in the prior 
texts, refers to an employee who has engaged in any other conduct (that 
is, conduct other than that covered by paragraph (a)(2)(ii) or (iii)) 
that would constitute a ground for denial of an application for access 
under Sec. 122.183. This provision is the necessary counterpart of 
paragraph (a)(1) of Sec. 122.183 in that it reflects the position of 
Customs that any ground for denial of an application for access to the 
Customs security area should also constitute a valid basis for 
revocation or suspension of access and surrender of the Customs access 
seal under Sec. 122.187.
    7. Paragraph (a)(2)(vi), which has no counterpart in the prior 
texts, refers to an employee who uses the approved access seal in 
connection with a matter not related to his employment or not 
constituting a duty described in the employer justification required by 
paragraph (c)(1) of Sec. 122.182. This provision relates specifically 
to the employee requirement regarding proper use of the access seal 
which was added to the second sentence of paragraph (a) of Sec. 122.182 
as discussed above.
    8. In paragraph (a)(2)(viii), which corresponds to prior paragraph 
(a)(6) and concerns bond sufficiency, the words ``for all employees of 
the bond holder'' have been added at the beginning of the text to 
clarify that, in the context of a revocation or suspension of access, 
bond sufficiency relates to all employees of the principal on the bond 
(that is, the employer) rather than to only one individual employee.
    9. Paragraph (a)(2)(x), which has no counterpart in the prior 
texts, refers to the failure of an employee or employer to notify 
Customs of a change in circumstances under new paragraph (b) or (c) of 
Sec. 122.184 and the failure of an employee to report the loss or theft 
of a Customs access seal as required by Sec. 122.185.
    Paragraph (b), which concerns the notice of revocation or 
suspension, represents a significant expansion of the prior text in 
order to address some of the principal problems mentioned earlier in 
this document. The changes involve both a modification of the prior 
paragraph (b) text and the addition of two new paragraphs (b)(1) and 
(b)(2). The following points are noted regarding these changes:
    1. With regard to the prior text, which has become the introductory 
text of paragraph (b), a reference to demanding surrender of the 
Customs access seal has been added in the first sentence because this 
is an integral part of a revocation or suspension action. In addition, 
the text has been shortened and at the end provides that the notice of 
revocation or suspension will indicate whether the action is effective 
immediately or is proposed.
    2. New paragraph (b)(1), which is headed ``immediate revocation or 
suspension,'' provides that the port director will issue a final notice 
of revocation or suspension when the revocation or suspension of access 
and surrender of the Customs access seal are effective immediately. The 
paragraph also allows the port director or his designee to deny 
physical access to the Customs security area and demand surrender of an 
approved Customs access seal at any time on an emergency basis prior to 
issuance of a final notice of revocation or suspension whenever in his 
judgment an emergency situation involving public health, safety, or 
security is involved. In the latter case, a final notice of revocation 
or suspension would be issued to the affected employee within 10 days 
of the emergency action. The text also provides that the final notice 
of revocation or suspension issued under this paragraph will state the 
specific grounds for the immediate action, will direct the employee to 
immediately surrender the access seal if he has not already done so, 
and will advise the employee that he may pursue one of the following 
two options: (1) Submit a new application for a Customs access seal on 
or after the 180th day after the date of the final notice of revocation 
or suspension; or (2) file a written administrative appeal with the 
port director in accordance with paragraph (c) within 30 days of the 
date of the final notice of revocation or suspension. Finally, the text 
provides that, if the employee chooses to appeal, the appeal may 
request that a hearing be held in accordance with paragraph (d) but in 
that case must demonstrate that there is a genuine issue of fact that 
is material to the revocation or suspension action. These new 
provisions regarding immediate revocation or suspension have been 
included to address one of the security and related concerns outlined 
in the third principal problem area mentioned earlier in this document.
    3. New paragraph (b)(2), which is headed ``proposed revocation or 
suspension,'' is the alternative to an immediate action under paragraph 
(b)(1). Paragraph (b)(2)(i) concerns issuance of the notice of proposed 
revocation or suspension and provides that the notice will state the 
specific grounds for the proposed action, will inform the employee that 
he may continue to have access to the Customs security area and retain 
his access seal pending issuance of a final notice under paragraph 
(b)(2)(ii), and will advise the employee that he may file a written 
response with the port director within 10 days and may ask for a 
meeting with the port director to discuss the proposed action. 
Paragraph (b)(2)(ii) concerns the issuance of a notice of final 
determination regarding the employee's right of access to the Customs 
security area. It provides that if the employee does not respond to the 
notice of proposed action, or if the employee files

[[Page 48983]]

a timely response and the port director's final determination is 
adverse to the employee, the port director will issue a final notice of 
revocation or suspension within 30 days of the notice of proposed 
action, or within 30 days of receipt of the employee's response, which 
states the specific grounds for the action, directs the employee to 
immediately surrender the Customs access seal, and advises the employee 
that he may choose to pursue one of the two options specified under 
paragraph (b)(1), that is, reapplication or appeal. These paragraph 
(b)(2) provisions are not directly related to the security concerns 
that are the primary focus of this document, but Customs believes that 
they represent a distinct due process improvement over the prior 
proposed revocation or suspension notice procedures.
    Paragraph (c), which concerns appeal procedures, represents a 
significant expansion of the prior text primarily in order to address 
the appeal hearing issue referred to in the third principal problem 
area outlined earlier in this document. The changes involve 
redesignation of the prior paragraph (c) text as paragraph (c)(1) with 
the heading ``filing of appeal'' and the addition of two new paragraphs 
(c)(2) and (c)(3). The following points are noted regarding 
redesignated paragraph (c)(1) and new paragraphs (c)(2) and (c)(3):
    1. In redesignated paragraph (c)(1), the last sentence regarding 
requesting a hearing in the notice of appeal has been replaced by a new 
sentence that gives the port director discretion to allow more time for 
the employee to submit information in support of the appeal.
    2. New paragraph (c)(2), which is headed ``action by the port 
director,'' provides that if the appellant requests a hearing, the port 
director will first review the appeal to determine whether there is a 
genuine issue of fact that is material to the revocation or suspension 
action. If a hearing is required because the port director finds that 
there is a genuine issue of fact that is material to the revocation or 
suspension action, a hearing will be held, and a decision on the appeal 
will be rendered, in accordance with paragraphs (d) through (f). On the 
other hand, if no hearing is requested or if a requested hearing is not 
required, no hearing will be held and the port director will forward 
the administrative record, together with the port director's response 
to any statements made in the notice of appeal, to the director of 
field operations at the Customs Management Center having jurisdiction 
over the office of the port director for a decision on the appeal under 
paragraph (c)(3).
    3. New paragraph (c)(3), which is headed ``action by the 
director,'' provides for issuance of a written decision on the appeal 
by the director of field operations within 30 days based on the 
administrative record forwarded by the port director under paragraph 
(c)(2). The paragraph provides for transmittal of the decision to the 
port director for service on the employee and states that the decision 
on the appeal will constitute the final administrative action on the 
matter.
    In paragraph (d), which concerns hearing procedures, a new sentence 
has been added at the beginning to restate the rule regarding when a 
hearing will be held, that is, only when requested in an appeal and 
only if the affected employee demonstrates that there is a genuine 
issue of fact that is material to the revocation or suspension action. 
In addition, except as regards designation of the hearing officer, all 
references to ``the Commissioner or his designee'' have been replaced 
by references to ``the director of field operations'' who will receive 
the appropriate record from the hearing officer for purposes of 
rendering a decision on the appeal.
    The following changes have been made to paragraph (e) which 
provides for the submission of additional written views following the 
hearing: (1) References to the Commissioner or his designee in the 
prior text have been replaced by references to the director of field 
operations; (2) the words ``the employee'' in the prior text have been 
replaced by ``either party'' because Customs believes that both the 
employee and the government should have the opportunity to submit 
additional written views; (3) a sentence has been added to require that 
a copy of a submission be provided to the other party; and (4) two 
sentences have been added at the end to provide that the other party 
may within 10 days file a reply to a submission with the director of 
field operations, with a copy being provided to the other party, and to 
provide that no further submissions will be accepted. These changes 
have been included for due process or other procedural purposes and are 
not related to the security concerns addressed elsewhere in this 
document.
    In paragraph (f), which concerns issuance of the decision after a 
hearing, the first sentence has been changed by the addition of a 
reference to consideration of ``any additional written submissions and 
replies made under paragraph (e)'' and by providing that the decision 
will be made by the director of field operations rather than by the 
Commissioner or his designee. In addition, a sentence has been added at 
the end stating that a decision on an appeal rendered under that 
paragraph will constitute the final administrative action on the 
matter. These procedural changes are also not related to security 
concerns.

New Sec. 122.189

    This new section, which is headed ``bond liability,'' is intended 
to clarify that a principal may face consequences for a failure to 
comply with the conditions of the bond required under Sec. 122.182(c) 
which include an obligation to comply with the Customs Regulations 
applicable to Customs security areas at airports. This new section 
refers specifically to an employer because an employer would be a 
principal on the bond to whom specific requirements apply under 
Sec. 122.182(b) and under new Sec. 122.184(c).

Comments

    Before adopting this interim regulation as a final rule, 
consideration will be given to any written comments timely submitted to 
Customs, including comments on the clarity of this interim rule and how 
it may be made easier to understand. Comments submitted will be 
available for public inspection in accordance with the Freedom of 
Information Act (5 U.S.C. 552), Sec. 1.4, Treasury Department 
Regulations (31 CFR 1.4), and Sec. 103.11(b), Customs Regulations (19 
CFR 103.11(b)), on regular business days between the hours of 9 a.m. 
and 4:30 p.m. at the Office of Regulations and Rulings, U.S. Customs 
Service, 799 9th Street NW., Washington, DC. Arrangements to inspect 
submitted comments should be made in advance by calling Mr. Joseph 
Clark at (202) 572-8768.

Inapplicability of Notice and Delayed Effective Date Requirements 
and the Regulatory Flexibility Act

    Pursuant to the provisions of 5 U.S.C. 553(b)(B), Customs has 
determined that prior public notice and comment procedures on these 
regulations are unnecessary and contrary to the public interest. The 
regulatory changes contained in this document are primarily intended to 
enhance the security environment at airports in those areas designated 
as Customs security areas. The amendments promote public safety and 
airport security and therefore are in the public interest. For the same 
reasons, pursuant to the provisions of 5 U.S.C. 553(d)(3), Customs 
finds that there is good cause for dispensing with a delayed effective 
date. Because no notice of proposed rulemaking is required for interim

[[Page 48984]]

regulations, the provisions of the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) do not apply.

Executive Order 12866

    This document does not meet the criteria for a ``significant 
regulatory action'' as specified in E.O. 12866.

Paperwork Reduction Act

    This regulation is being issued without prior notice and public 
procedure pursuant to the Administrative Procedure Act (5 U.S.C. 553). 
For this reason, the collection of information contained in this 
regulation has been reviewed and, pending receipt and evaluation of 
public comments, approved by the Office of Management and Budget in 
accordance with the requirements of the Paperwork Reduction Act (44 
U.S.C. 3507) under control number 1515-0026.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless the collection of 
information displays a valid control number.
    The collection of information in these interim regulations is in 
Sec. 122.182. This information is used by Customs to determine whether 
an individual's application for access to a Customs security area 
should be granted, to monitor current use of the access privilege by 
individuals, to determine whether an individual has engaged in conduct 
that might warrant revocation or suspension of access, and to determine 
whether access should be granted on a temporary basis. The likely 
respondents are individuals and business organizations including 
aircraft operators, airport operators, and subcontractors of aircraft 
and airport operators.
    Estimated annual reporting and/or recordkeeping burden: 9,750 
hours.
    Estimated average annual burden per respondent/recordkeeper: 13 
minutes.
    Estimated number of respondents and/or recordkeepers: 30,000.
    Estimated annual frequency of responses: 1.5.
    Comments on the collection of information should be sent to the 
Office of Management and Budget, Attention: Desk Officer of the 
Department of the Treasury, Office of Information and Regulatory 
Affairs, Washington, DC 20503. A copy should also be sent to the 
Regulations Branch, Office of Regulations and Rulings, U.S. Customs 
Service, 1300 Pennsylvania Avenue, NW., 3rd Floor, Washington, DC 
20229. Comments should be submitted within the time frame that comments 
are due regarding the substance of the interim regulations.
    Comments are invited on: (a) Whether the collection of information 
is necessary for the proper performance of the functions of the agency, 
including whether the information shall have practical utility; (b) the 
accuracy of the agency's estimate of the burden of the collection of 
the information; (c) ways to enhance the quality, utility, and clarity 
of the information to be collected; (d) ways to minimize the burden of 
the collection of information on respondents, including through the use 
of automated collection techniques or other forms of information 
technology; and (e) estimates of capital or startup costs and costs of 
operations, maintenance, and purchase of services to provide 
information.

Drafting Information

    The principal author of this document was Francis W. Foote, Office 
of Regulations and Rulings, U.S. Customs Service. However, personnel 
from other offices participated in its development.

List of Subjects in 19 CFR Part 122

    Administrative practice and procedure, Air carriers, Aircraft, 
Airports, Air transportation, Bonds, Customs duties and inspection, 
Penalties, Reporting and recordkeeping requirements, Security measures, 
Surety bonds.

Amendments to the Regulations

    For the reasons set forth in the preamble, part 122, Customs 
Regulations (19 CFR part 122), is amended as set forth below.

PART 122--AIR COMMERCE REGULATIONS

    1. The authority citation for Part 122 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 19 U.S.C. 58b, 66, 1433, 1436, 1448, 
1459, 1590, 1594, 1623, 1624, 1644, 1644a.


    2. In Sec. 122.181, the first sentence is amended by adding after 
the words ``arriving from'' the words '', or departing to,''.

    3. In Sec. 122.182:
    a. Paragraph (a) is revised;
    b. Paragraph (b) is amended by removing the words ``and liability'' 
in the paragraph heading and by removing the last sentence;
    c. Paragraphs (c) and (d) are revised;
    d. The first sentence of paragraph (e) is amended by removing the 
words ``identification card, strip, or seal'' and adding, in their 
place, the words ``Customs access seal'';
    e. Paragraph (f) is amended by removing the word ``identification'' 
in the paragraph heading and adding, in its place, the words ``access 
seal'', by removing the words ``identification card, strip or seal'' in 
the introductory text and adding, in their place, the words ``Customs 
access seal'', and by removing the words ``identification card, strip, 
or seal'' in paragraph (f)(4) and adding, in their place, the words 
``Customs access seal''; and
    f. Paragraph (g) is amended by removing the word ``cards'' in the 
paragraph heading and adding, in its place, the words ``access seal'', 
by adding the words ``or where the 2-year period referred to in 
paragraph (a) of this section expires and a new application under 
paragraph (c)(2) of this section has not been approved,'' in the first 
sentence after the words ``or other reason,'', by removing the words 
``identification card, strip, or seal'' in the first and second 
sentences and adding, in their place, the words ``Customs access 
seal'', by removing the words ``who no longer requires access'' at the 
end of the second sentence, and by removing the last two sentences.
    The revisions read as follows:


Sec. 122.182  Security provisions.

    (a) Customs access seal required. With the exception of all Federal 
and uniformed State and local law enforcement personnel and aircraft 
passengers and crew, all persons located at, operating out of, or 
employed by any airport accommodating international air commerce or its 
tenants or contractors, including air carriers, who have unescorted 
access to the Customs security area, must openly display or produce 
upon demand an approved access seal issued by Customs. The approved 
Customs access seal must be in the possession of the person in whose 
name it is issued whenever the person is in the Customs security area 
and must be used only in furtherance of that person's employment in 
accordance with the description of duties submitted by the employer 
under paragraph (c)(1) of this section. The Customs access seal remains 
the property of Customs, and any bearer must immediately surrender it 
as provided in paragraph (g) of this section or upon demand by any 
authorized Customs officer for any cause referred to in 
Sec. 122.187(a). Unless surrendered pursuant to paragraph (g) of this 
section or Sec. 122.187, each approved Customs access seal issued under 
paragraph (c)(1) of this section will remain valid for 2 years from 
January 1, 2002, in the case of a Customs access seal issued prior to 
that date and for 2 years from the date of issuance in all other cases. 
Retention of an approved Customs access seal beyond the

[[Page 48985]]

applicable 2-year period will be subject to the reapplication 
provisions of paragraph (c)(2) of this section.
* * * * *
    (c) Application requirements--(1) Initial application. An 
application for an approved Customs access seal, as required by this 
section, must be filed by the applicant with the port director on 
Customs Form 3078 and must be supported by a written request and 
justification for issuance prepared by the applicant's employer that 
describes the duties that the applicant will perform while in the 
Customs security area. The application requirement applies to all 
employees required to display an approved Customs access seal by this 
section, regardless of the length of their employment. The application 
must be supported by the bond of the applicant's employer or principal 
on Customs Form 301 containing the bond conditions set forth in 
Sec. 113.62, Sec. 113.63, or Sec. 113.64 of this chapter, relating to 
importers or brokers, custodians of bonded merchandise, or 
international carriers. If the applicant's employer is not the 
principal on a Customs bond on Customs Form 301 for one or more of the 
activities to which the bond conditions set forth in Sec. 113.62, 
Sec. 113.63, or Sec. 113.64 relate, the application must be supported 
by an Airport Customs Security Area Bond, as set forth in appendix A of 
part 113 of this chapter. The latter bond may be waived, however, for 
State or local government-related agencies in the discretion of the 
port director. Waiver of this bond 29 does not relieve the agency in 
question or its employees from compliance with all other provisions of 
this subpart. In addition, in connection with an application for an 
approved Customs access seal under this section:
    (i) The port director may require the applicant to submit 
fingerprints on form FD-258 or on any other approved medium either at 
the time of, or following, the filing of the application. If required, 
the port director will inform the applicant of the current Federal 
Bureau of Investigation user fee for conducting fingerprint checks and 
the Customs administrative processing fee, the total of which must be 
tendered by, or on behalf of, the applicant with the application; and
    (ii) Proof of citizenship or authorized residency and a photograph 
may also be required.
    (2) Reapplication. If a person wishes to retain an approved Customs 
access seal for one or more additional 2-year periods beyond the 2-year 
period referred to in paragraph (a) of this section, that person must 
submit a new application no later than 30 calendar days prior to the 
start of each additional period. The new application must be filed in 
the manner specified in paragraph (c)(1) of this section for an initial 
application, and the port director may also require the submission of 
fingerprints as provided in paragraph (c)(1)(i) of this section. The 
new application will be subject to review on a de novo basis as if it 
were an initial application except that the written attestation 
referred to in paragraph (d) of this section will not be required if 
there has been no change in the employment of the applicant since the 
last attestation was submitted to Customs.
    (d) Background check. An authorized official of the employer must 
attest in writing that a background check has been conducted on the 
applicant, to the extent allowable by law. The background check must 
include, at a minimum, references and employment history, to the extent 
necessary to verify representations made by the applicant relating to 
employment in the preceding 5 years. The authorized official of the 
employer must attest that, to the best of his knowledge, the applicant 
meets the conditions necessary to perform functions associated with 
employment in the Customs security area. Additionally, the application 
may be investigated by Customs and a report prepared concerning the 
character of the applicant. Records of background investigations 
conducted by employers must be retained for a period of one year 
following cessation of employment and made available upon request of 
the port director.
* * * * *

    4. In Sec. 122.183, paragraph (a), the last sentence of paragraph 
(c), and paragraph (d) are revised to read as follows:


Sec. 122.183  Denial of access.

    (a) Grounds for denial. Access to the Customs security area will 
not be granted, and therefore an approved Customs access seal will not 
be issued, to any person whose access to the Customs security area 
will, in the judgment of the port director, endanger the revenue or the 
security of the area or pose an unacceptable risk to public health, 
interest or safety, national security, or aviation safety. Specific 
grounds for denial of access to the Customs security area include, but 
are not limited to, the following:
    (1) Any cause which would justify a demand for surrender of a 
Customs access seal or the revocation or suspension of access under 
Sec. 122.182(g) or Sec. 122.187;
    (2) Evidence of a pending or past investigation establishing 
probable cause to believe that the applicant has engaged in any conduct 
which relates to, or which could lead to a conviction for, a 
disqualifying offense listed under paragraph (a)(4) of this section;
    (3) The arrest of the applicant for, or the charging of the 
applicant with, a disqualifying offense listed under paragraph (a)(4) 
of this section on which prosecution or other disposition is pending;
    (4) A disqualifying offense committed by the applicant. For 
purposes of this paragraph, an applicant commits a disqualifying 
offense if the applicant has been convicted of, or found not guilty of 
by reason of insanity, or has committed any act or omission involving, 
any of the following in any jurisdiction during the 5-year period, or 
any longer period that the port director deems appropriate for the 
offense in question, prior to the date of the application submitted 
under Sec. 122.182 or at any time while in possession of an approved 
Customs access seal:
    (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 in the special aircraft jurisdiction of the 
United States (49 U.S.C. 46502(a));
    (v) Interference with flight crew members or flight attendants (49 
U.S.C. 46504);
    (vi) Commission of certain crimes aboard aircraft in flight (49 
U.S.C. 46506);
    (vii) Carrying a weapon or explosive aboard aircraft (49 U.S.C. 
46505);
    (viii) Conveying false information and threats (49 U.S.C. 46507);
    (ix) Aircraft piracy outside the special aircraft jurisdiction of 
the United States (49 U.S.C. 46502(b));
    (x) Lighting violations involving transportation of controlled 
substances (49 U.S.C. 46315);
    (xi) Unlawful entry into an aircraft or airport area that serves 
air carriers or foreign air carriers contrary to established security 
requirements (49 U.S.C. 46314);
    (xii) Destruction of an aircraft or aircraft facility (18 U.S.C. 
32);
    (xiii) Murder;
    (xiv) Assault with intent to murder;
    (xv) Espionage;
    (xvi) Sedition;
    (xvii) Kidnapping or hostage taking;
    (xviii) Treason;
    (xix) Rape or aggravated sexual abuse;
    (xx) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon;

[[Page 48986]]

    (xxi) Extortion;
    (xxii) Armed or felony unarmed robbery;
    (xxiii) Distribution of, or intent to distribute, a controlled 
substance;
    (xxiv) Felony arson;
    (xxv) Felony involving:
    (A) A threat;
    (B) Willful destruction of property;
    (C) Importation or manufacture of a controlled substance;
    (D) Burglary;
    (E) Theft;
    (F) Dishonesty, fraud, or misrepresentation;
    (G) Possession or distribution of stolen property;
    (H) Aggravated assault;
    (I) Bribery; or
    (J) Illegal possession of a controlled substance punishable by a 
maximum term of imprisonment of more than one year;
    (xxvi) Violence at an airport serving international civil aviation 
(18 U.S.C. 37);
    (xxvii) Embezzlement;
    (xxviii) Perjury;
    (xxix) Robbery;
    (xxx) Crimes associated with terrorist activities;
    (xxxi) Sabotage;
    (xxxii) Assault with a deadly weapon;
    (xxxiii) Illegal use or possession of firearms or explosives;
    (xxxiv) Any violation of a U.S. immigration law;
    (xxxv) Any violation of a Customs law or any other law administered 
or enforced by Customs involving narcotics or controlled substances, 
commercial fraud, currency or financial transactions, smuggling, 
failure to report, or failure to declare;
    (xxxvi) Airport security violations; or
    (xxxvii) Conspiracy or attempt to commit any of the offenses or 
acts referred to in paragraphs (a)(4)(i) through (a)(4)(xxxv) of this 
section;
    (5) Denial or suspension of the applicant's unescorted access 
authority to a Security Identification Display Area (SIDA) pursuant to 
regulations promulgated by the U.S. Federal Aviation Administration or 
other appropriate government agency; or
    (6) Inability of the applicant's employer or Customs to complete a 
meaningful background check or investigation of the applicant.
* * * * *
    (c) * * * The port director will render his decision on the appeal 
to the applicant in writing within 30 calendar days of receipt of the 
notice of appeal and, if the application is denied on appeal, the 
decision will advise the applicant of the procedures for filing a 
further appeal pursuant to paragraph (d) of this section.
    (d) Further appeal of denial. Where the application on appeal is 
denied by the port director, the applicant may file a further written 
notice of appeal with the director of field operations at the Customs 
Management Center having jurisdiction over the office of the port 
director within 10 calendar days of receipt of the port director's 
decision on the appeal. The further notice of appeal must be filed in 
duplicate and must set forth the response of the applicant to the 
decision of the port director. The director of field operations will 
review the appeal and render a written decision. The final decision 
will be transmitted to the port director and served by him on the 
applicant.

    5. Section 122.184 is revised to read as follows:


Sec. 122.184  Change of identification; change in circumstances of 
employee; additional employer responsibilities.

    (a) Change of identification. The Customs access seal may be 
removed from the employee by the port director where, for security 
reasons, a change in the nature of the identification card or other 
medium on which it appears is necessary.
    (b) Change in circumstances of employee. If, after issuance of a 
Customs access seal to an employee, any circumstance arises (for 
example, an arrest or 36 conviction for a disqualifying offense) that 
constitutes a ground for denial of access to the Customs security area 
under Sec. 122.183(a) or for revocation or suspension of access to the 
Customs security area and surrender of the Customs access seal under 
Sec. 122.187(a), the employee must within 24 hours advise the port 
director in writing of that change in circumstance. In the case of an 
arrest or prosecution for a disqualifying offense listed in 
Sec. 122.183(a)(4), the employee also must within 5 calendar days 
advise the port director in writing of the final disposition of that 
arrest or prosecution. In addition, if an airport operator or an 
aircraft operator suspends an employee's unescorted access authority to 
a Security Identification Display Area pursuant to regulations 
promulgated by the U.S. Federal Aviation Administration or other 
appropriate government agency and the employee also has an approved 
Customs access seal, the employee must within 24 hours advise the port 
director in writing of the fact of, and basis for, the suspension.
    (c) Additional employer responsibilities. If an employer becomes 
aware of any change in the circumstances of its employee as described 
in paragraph (b) of this section, the employer must immediately advise 
the port director of that fact even though the employee may have 
separately reported that fact to the port director under paragraph (b) 
of this section. In addition, each employer must submit to the port 
director during the first month of each calendar quarter a report 
setting forth a current list of all its employees who have an approved 
Customs access seal. The quarterly report must list separately all 
additions to, and deletions from, the previous quarterly report. 
Moreover, each employer must take appropriate steps to ensure that an 
employee uses an approved Customs access seal only in connection with 
activities relating to his employment.

    6. Section 122.185 is revised to read as follows:


Sec. 122.185  Report of loss or theft of Customs access seal.

    The loss or theft of an approved Customs access seal must be 
promptly reported in writing by the employee to the port director. The 
Customs access seal may be replaced, as provided in Sec. 122.182(f).

    7. Section 122.186 is revised to read as follows:


Sec. 122.186  Presentation of Customs access seal by other person.

    If an approved Customs access seal is presented by a person other 
than the one to whom it was issued, the Customs access seal will be 
removed and destroyed. An approved Customs access seal may be removed 
from an employee by any Customs officer designated by the port 
director.

    8. Section 122.187 is revised to read as follows:


Sec. 122.187  Revocation or suspension of access.

    (a) Grounds for revocation or suspension of access--(1) General. 
The port director:
    (i) Must immediately revoke or suspend an employee's access to the 
Customs security area and demand the immediate surrender of the 
employee's approved Customs access seal for any ground specified in 
paragraph (a)(2) of this section; or
    (ii) May propose the revocation or suspension of an employee's 
access to the Customs security area and the surrender of the employee's 
approved Customs access seal whenever, in the judgment of the port 
director, it appears for any ground not specified in paragraph (a)(2) 
of this section that continued access might pose an

[[Page 48987]]

unacceptable risk to public health, interest or safety, national 
security, aviation safety, the revenue, or the security of the area. In 
this case the port director will provide the employee with an 
opportunity to respond to the notice of proposed action.
    (2) Specific grounds. Access to the Customs security area will be 
revoked or suspended, and surrender of an approved Customs access seal 
will be demanded, in any of the following circumstances:
    (i) There is probable cause to believe that an approved Customs 
access seal was obtained through fraud, a material omission, or the 
misstatement of a material fact;
    (ii) The employee is or has been convicted of, or found not guilty 
of by reason of insanity, or there is probable cause to believe that 
the employee has committed any act or omission involving, an offense 
listed in Sec. 122.183(a)(4);
    (iii) The employee has been arrested for, or charged with, an 
offense listed in Sec. 122.183(a)(4) and prosecution or other 
disposition of the arrest or charge is pending;
    (iv) The employee has engaged in any other conduct that would 
constitute a ground for denial of access to the Customs security area 
under Sec. 122.183;
    (v) The employee permits the approved Customs access seal to be 
used by any other person or refuses to openly display or produce it 
upon the proper demand of a Customs officer;
    (vi) The employee uses the approved Customs access seal in 
connection with a matter not related to his employment or not 
constituting a duty described in the written justification required by 
Sec. 122.182(c)(1);
    (vii) The employee refuses or neglects to obey any proper order of 
a Customs officer, or any Customs order, rule, or regulation;
    (viii) For all employees of the bond holder, if the bond required 
by Sec. 122.182(c) is determined to be insufficient in amount or 
lacking sufficient sureties, and a satisfactory new bond with good and 
sufficient sureties is not furnished within a reasonable time;
    (ix) The employee no longer requires access to the Customs security 
area for an extended period of time at the airport of issuance because 
of a change in duties, termination of employment, or other reason; or
    (x) The employee or employer fails to provide the notification of a 
change in circumstances as required under Sec. 122.184(b) or (c) or the 
employee fails to report the loss or theft of a Customs access seal as 
required under Sec. 122.185.
    (b) Notice of revocation or suspension. The port director will 
revoke or suspend access to the Customs security area and demand 
surrender of the Customs access seal by giving notice of the revocation 
or suspension and demand in writing to the 40 employee, with a copy of 
the notice to the employer. The notice will indicate whether the 
revocation or suspension is effective immediately or is proposed.
    (1) Immediate revocation or suspension. When the revocation or 
suspension of access and the surrender of the Customs access seal are 
effective immediately, the port director will issue a final notice of 
revocation or suspension. The port director or his designee may deny 
physical access to the Customs security area and may demand surrender 
of an approved Customs access seal at any time on an emergency basis 
prior to issuance of a final notice of revocation or suspension 
whenever in the judgment of the port director or his designee an 
emergency situation involving public health, safety, or security is 
involved and, in such a case, a final notice of revocation or 
suspension will be issued to the affected employee within 10 calendar 
days of the emergency action. A final notice of revocation or 
suspension will state the specific grounds for the immediate revocation 
or suspension, direct the employee to immediately surrender the Customs 
access seal if that Customs access seal has not already been 
surrendered, and advise the employee that he may choose to pursue one 
of the following two options:
    (i) Submit a new application for an approved Customs access seal, 
in accordance with the provisions of Sec. 122.182(c), on or after the 
180th calendar day following the date of the final notice of revocation 
or suspension; or
    (ii) File a written administrative appeal of the final notice of 
revocation or suspension with the port director in accordance with 
paragraph (c) of this section within 30 calendar days of the date of 
the final notice of revocation or suspension. The appeal may request 
that a hearing be held in accordance with paragraph (d) of this 
section, and in that case the appeal also must demonstrate that there 
is a genuine issue of fact that is material to the revocation or 
suspension action.
    (2) Proposed revocation or suspension--(i) Issuance of notice. When 
the revocation or suspension of access and the surrender of the Customs 
access seal is proposed, the port director will issue a notice of 
proposed revocation or suspension. The notice of proposed revocation or 
suspension will state the specific grounds for the proposed action, 
inform the employee that he may continue to have access to the Customs 
security area and may retain the Customs access seal pending issuance 
of a final notice under paragraph (b)(2)(ii) of this section, and 
advise the employee that he may file with the port director a written 
response addressing the grounds for the proposed action within 10 
calendar days of the date the notice of proposed action was received by 
the employee. The employee may respond by accepting responsibility, 
explaining extenuating circumstances, and/or providing rebuttal 
evidence. The employee also may ask for a meeting with the port 
director or his designee to discuss the proposed action.
    (ii) Final notice--(A) Based on nonresponse. If the employee does 
not respond to the notice of proposed action, the port director will 
issue a final notice of revocation or suspension within 30 calendar 
days of the date the notice of proposed action was received by the 
employee. The final notice of revocation or suspension will state the 
specific grounds for the revocation or suspension, direct the employee 
to immediately surrender the Customs access seal, and advise the 
employee that he may 42 choose to pursue one of the two options 
specified in paragraphs (b)(1)(i) and (ii) of this section.
    (B) Based on response. If the employee files a timely response, the 
port director will issue a final determination regarding the status of 
the employee's right of access to the Customs security area within 30 
calendar days of the date the employee's response was received by the 
port director. If this final determination is adverse to the employee, 
then the final notice of revocation or suspension will state the 
specific grounds for the revocation or suspension, direct the employee 
to immediately surrender the Customs access seal, and advise the 
employee that he may choose to pursue one of the two options specified 
in paragraphs (b)(1)(i) and (ii) of this section.
    (c) Appeal procedures--(1) Filing of appeal. The employee may file 
a written appeal of the final notice of revocation or suspension with 
the port director within 10 calendar days following receipt of the 
final notice of revocation or suspension. The appeal must be filed in 
duplicate and must set forth the response of the employee to the 
statement of the port director. The port director may, in his 
discretion, allow the employee additional time to submit documentation 
or other information in support of the appeal.

[[Page 48988]]

    (2) Action by port director--(i) If a hearing is requested. If the 
appeal requests that a hearing be held, the port director will first 
review the appeal to determine whether there is a genuine issue of fact 
that is material to the revocation or suspension action. If a hearing 
is required because the port director finds that there is a genuine 43 
issue of fact that is material to the revocation or suspension action, 
a hearing will be held, and a decision on the appeal will be rendered, 
in accordance with paragraphs (d) through (f) of this section. If the 
port director finds that there is no genuine issue of fact that is 
material to the revocation or suspension action, no hearing will be 
held and the port director will forward the administrative record as 
provided in paragraph (c)(2)(ii) of this section for the rendering of a 
decision on the appeal under paragraph (c)(3) of this section.
    (ii) CMC review. If no hearing is requested or if the port director 
finds that a requested hearing is not required, following receipt of 
the appeal the port director will forward the administrative record to 
the director of field operations at the Customs Management Center 
having jurisdiction over the office of the port director for a decision 
on the appeal. The transmittal of the port director must include a 
response to any disputed issues raised in the appeal.
    (3) Action by the director. Following receipt of the administrative 
record from the port director, the director of field operations will 
render a written decision on the appeal based on the record forwarded 
by the port director. The decision will be rendered within 30 calendar 
days of receipt of the record and will be transmitted to the port 
director and served by the port director on the employee. A decision on 
an appeal rendered under this paragraph will constitute the final 
administrative action on the matter.
    (d) Hearing. A hearing will be conducted in connection with an 
appeal of a final notice of revocation or suspension of access to the 
Customs security area only if the 44 affected employee in writing 
requests a hearing and demonstrates that there is a genuine issue of 
fact that is material to the revocation or suspension action. If a 
hearing is required, it must be held before a hearing officer 
designated by the Commissioner, or his designee. The employee will be 
notified of the time and place of the hearing at least 5 calendar days 
before the hearing. The employee may be represented by counsel at the 
revocation or suspension hearing. All evidence and testimony of 
witnesses in the proceeding, including substantiation of charges and 
the answer to the charges, must be presented. Both parties will have 
the right of cross'examination. A stenographic record of the 
proceedings will be made upon request and a copy furnished to the 
employee. At the conclusion of the proceedings or review of a written 
appeal, the hearing officer must promptly transmit all papers and the 
stenographic record to the director of field operations, together with 
the recommendation for final action. If neither the employee nor his 
attorney appears for a scheduled hearing, the hearing officer must 
record that fact, accept any appropriate testimony, and conclude the 
hearing. The hearing officer must promptly transmit all papers, 
together with his recommendations, to the director of field operations.
    (e) Additional written views. Within 10 calendar days after 
delivery of a copy of the stenographic record of the hearing to the 
director of field operations, either party may submit to the director 
of field operations additional written views and arguments on matters 
in the record. A copy of any submission will be provided to the other 
party. Within 10 calendar days of receipt of the copy of the 
submission, the other party may file a reply with the director of field 
operations, and a copy of the reply will be provided to the other 
party. No further submissions will be accepted.
    (f) Decision. After consideration of the recommendation of the 
hearing officer and any additional written submissions and replies made 
under paragraph (e) of this section, the director of field operations 
will render a written decision. The decision will be transmitted to the 
port director and served by the port director on the employee. A 
decision on an appeal rendered under this paragraph will constitute the 
final administrative action on the matter.

    9. In Sec. 122.188:
    a. The section heading is amended by removing the word 
``identification'' and adding, in its place, the words ``Customs access 
seal'';
    b. Paragraph (a) is amended by removing the words ``identification 
card, strip, or seal'' in two places in the first sentence and adding, 
in their place, the words ``Customs access seal'' and by removing the 
words ``identification card'' in the last sentence and adding, in their 
place, the words ``Customs access seal'';
    c. Paragraph (b) is amended by removing the words ``identification 
card, strip, or seal'' wherever they appear and adding, in their place, 
the words ``Customs access seal'';
    d. Paragraph (c) is amended by removing the words ``identification 
card, strip, or seal'' in the second and third sentences and adding, in 
their place, the words ``Customs access seal'' and by removing the 
words ``identification cards, strips, or seals'' in the last sentence 
and adding, in their place, the words ``Customs access seal''; and
    e. Paragraph (d) is amended by removing the words ``identification 
card, strip, or seal'' wherever they appear and adding, in their place, 
the words ``Customs access seal''.

    10. New Sec. 122.189 is added to read as follows:


Sec. 122.189  Bond liability.

    Any failure on the part of a principal to comply with the 
conditions of the bond required under Sec. 122.182(c), including a 
failure of an employer to comply with any requirement applicable to the 
employer under this subpart, will constitute a breach of the bond and 
may result in a claim for liquidated damages under the bond.

Robert C. Bonner,
Commissioner of Customs.
    Approved: July 24, 2002.
Timothy E. Skud,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 02-19055 Filed 7-26-02; 8:45 am]
BILLING CODE 4820-02-P