Civil Aviation Security Rules

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 91, 107, 108, 109, 121, 129, 135, 139, and 191

Transportation Security Administration

49 CFR Parts 1500, 1510, 1520, 1540, 1542, 1544, 1546, 1548, 1550

[Docket No. TSA-2002-11602; Amendment Nos. 91-272; 107-15; 108-20; 109-4; 121-289; 129-31; 135-83; 139-24; 191-5]

RIN 2110-AA03

Civil Aviation Security Rules

AGENCY:

Federal Aviation Administration (FAA) and Transportation Security Administration (TSA), DOT.

ACTION:

Final rule.

SUMMARY:

This rulemaking transfers the FAA's rules governing civil aviation security to TSA. This rulemaking also amends those rules to enhance security as required by recent legislation. This rulemaking also requires additional qualifications, training, and testing of individuals who screen persons and property that are carried in passenger aircraft. It is intended to improve the quality of screening conducted by aircraft operators and foreign air carriers. This rule is being adopted to improve the qualifications of individuals performing screening, and thereby to improve the level of security in air transportation. This will help ensure a smooth transition of aviation security from the FAA to TSA, and will avoid disruptions in air transportation due to any shortage of qualified screeners.

DATES:

This rule is effective February 17, 2002. The incorporation by reference of certain publications in the rule is approved by the Director of the Federal Register as of February 17, 2002. Submit comments by March 25, 2002.

ADDRESSES:

You may obtain a copy of this final rule from the DOT public docket through the Internet at

http://dms.dot.gov/

, docket number TSA-2002-11602. If you do not have access to the Internet, you may obtain a copy of the working draft by United States mail from the Docket Management System, U.S. Department of Transportation, Room PL401, 400 Seventh Street, SW., Washington, DC 20590-0001. You must identify Docket Number TSA-2002-11602 and request a copy of the final rule entitled “Civil Aviation Security Rules.”

You may also review the public docket in person in the Docket Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office is on the plaza level of the Department of Transportation.

FOR FURTHER INFORMATION CONTACT:

Scott Cummings, telephone 202-267-3413. For Part 1542—Brian Reed; for Part 1544—Lon M. Siro; for Part 1546—Nouri Larbi; for Part 1548—John F. DelCampo; Transportation Security Administration, Department of Transportation, 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 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 FAA or 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 and the FAA 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.

Abbreviations and Terms Used In This Document

ASIA 2000—Airport Security Improvement Act of 2000

ATSA—Aviation and Transportation Security Act

Computer Assisted Passenger Prescreening System (CAPPS)

GED—General Equivalency Diploma

Screening company NPRM—Notice of Proposed Rulemaking, Certification of Screening Companies, 65 FR 560 (January 5, 2000)

SIDA—Security identification display areas

SSI—Sensitive security information

TIP—Threat image projection

TSA—Transportation Security Administration

Background

Regulatory and Legislative Context

The current aviation security rules are in title 14 of the Code of Federal Regulations. Part 107 governs airport operators that serve certain passenger operations of air carriers and commercial operators. Part 108 is for certain aircraft operators that hold U.S. air carrier or commercial operator certificates. Part 109 prescribes rules for indirect air carriers such as freight forwarders. Several sections in part 129 govern certain foreign air carriers that operate to, from, and within the United States. Aircraft operators and foreign air carriers are responsible for screening passengers and property that are carried on their aircraft. Part 191 covers the protection of sensitive security information. In addition, Special Federal Aviation Regulation 91 (SFAR 91) covers certain other aircraft operators. These rules were issued by the Administrator of the Federal Aviation Administration.

On January 5, 2000, the FAA published a Notice of Proposed Rulemaking (NPRM) that proposed to require FAA-certification for all companies that provide screening under 14 CFR parts 108, 109, and 129. See 65 FR 560. The screening company NPRM proposed such additional measures as improved training, FAA tests, and monitoring of the tests by aircraft operators. Further, the Airport Security Improvement Act of 2000 (ASIA 2000), Public Law 106-528, provided in part that training for screeners must include at least 40 hours of classroom instruction, with certain exceptions. The final rule on certification of screening companies was approved for publication shortly before the terrorist attacks of September 11, 2001, occurred.

September 11 Terrorist Attacks, and the Continuing Threat to Aviation Security

The September 11, 2001, terrorist attacks involving four U.S. commercial aircraft that resulted in the tragic loss of human life at the World Trade Center, the Pentagon, and southwest Pennsylvania, demonstrate the need for increased air transportation security measures. The Al-Qaeda organization, which was responsible for the attacks, possesses a near global network. The leaders of the groups constituting this organization have publicly stated that

they will attack the United States, its institutions, and its individual citizens. They retain a capability and willingness to conduct airline bombings, hijackings, and suicide attacks against U.S. targets: the December 22, 2001, attempted bombing of a U.S. carrier on a flight from Paris illustrates the continuing danger. Finally, it should be underscored that, although other potential threats to U.S. civil aviation may be overshadowed at present, they are no less important. For example, the uncertain course of the Middle East peace process, negative reactions to the U.S.-led military campaign in Afghanistan, and Iraqi opportunism in response to continued United Nations sanctions are among the developments that could give rise to attacks by groups or individuals not linked to the September 11 atrocities.

Aviation and Transportation Security Act

The September 11, 2001, attacks led Congress to enact the Aviation and Transportation Security Act (ATSA), Public Law 107-71, November 19, 2001. ATSA provides additional qualifications for screeners, including U.S. citizenship and increased training and testing of screeners.

Under ATSA, by November 19, 2002, the responsibility for inspecting persons and property carried by aircraft operators and foreign air carriers will be transferred to the Under Secretary of Transportation for Security, who heads a new agency created by that statute, the Transportation Security Administration (TSA).

ATSA requires TSA to make a number of improvements to aviation security. The improvements include that by November 19, 2002, screening of individuals and property in the United States be conducted by TSA employees and companies under contract with TSA. ATSA requires enhanced qualifications and training of individuals who perform screening functions. It requires that Federal law enforcement officers be present at screening locations.

Screening by TSA will make the certification of screening companies unnecessary. However, the screening company NPRM proposed enhanced screener qualifications and training, and enhanced aircraft operator and foreign air carrier oversight that remain relevant. First, until these duties are transferred, it is important to ensure that aircraft operators and foreign air carriers improve the qualifications, training, and testing of screeners in order to improve aviation security. Second, aircraft operators will continue to conduct some screening at foreign locations, which must be done in accordance with enhanced standards.

Current Rulemaking

This rulemaking serves several purposes. It transfers to TSA rules the current FAA rules governing civil aviation security. Further, it includes certain improved standards, most notably for screener qualifications and training.

This rule does not include all of the improvements in security required under ATSA, but is an important step towards full compliance with that Act. It is intended to respond to the ATSA mandate for increased screener qualifications, by ensuring that aircraft operators and foreign air carriers improve the qualifications, training, and testing for newly hired screeners. It also makes related changes, in part as proposed in the screening company NPRM, and as required in ASIA 2000.

Beginning February 17, 2002, TSA will be assuming responsibility for screening that is currently the responsibility of aircraft operators. TSA will require the screening companies to comply with essentially the same enhanced screener qualifications and training that is applied to the aircraft operators and foreign air carriers in this rule. Until TSA takes over responsibility for all these screening duties, it is important that the aircraft operators improve the training and qualifications of screeners.

Most of the new screener qualification requirements come directly from ATSA. We intend by this action to make an immediate improvement in screening in response to the ongoing threat of terrorism to aviation security. At the same time we recognize the importance of an orderly transition as TSA assumes responsibility for contracting with screening companies, hiring screeners, and conducting screening. An inefficient transition would adversely affect security and would be costly and disruptive to the industry. As TSA begins to hire screeners, it will use a hiring process to select the most qualified personnel among all applicants. However, by acting now to ensure that hired screeners newly hired by aircraft operators and foreign air carriers meet many of the increased standards, a substantial number of better trained and qualified workers will be available by the time the ATSA requirements come into full effect. The standards imposed in this rule are thus an interim step, but we anticipate that many of the people hired during the transition period will also have the necessary ability and training for future positions with TSA. These persons may subsequently be hired for those positions, although this is not assured.

This rulemaking does not address some measures required in ATSA to enhance screening, such as additional background checks for individuals with access to secured areas of airports. Those measures are under development now.

We emphasize that we are applying the new screener standards at this time only to employees hired as of February 17, 2002. Those individuals now performing screening functions on behalf of aircraft operators or foreign air carriers who may not be able to meet the requirements of ATSA once it comes into full effect may remain in their positions during the transition. In addition, those employees who are not currently eligible under ATSA may be able to take action during the transition period to improve their qualifications for future positions performing screening functions under TSA. For example, some people now performing screening functions may be eligible for U.S. citizenship, but have not yet taken the steps necessary to become U.S. citizens.

Overview of This Rulemaking

This rulemaking transfers the aviation security rules to title 49 of the Code of Federal Regulations. The Under Secretary of Transportation for Security is issuing these new rules.

The rules are largely unchanged from the FAA security rules, other than to change references from FAA to TSA. This rulemaking also incorporates some enhanced screener qualifications and training standards mandated by ATSA. These changes are discussed in this document in connection with the part of the rule affected.

These rules do not include all of the new security measures required in ATSA. In the future, TSA will adopt additional measures to improve controls to the access to secured areas of airports, additional checks of the backgrounds of individuals who have access to secured areas, and other measures required in ATSA.

14 CFR—FAA Regulations

Because security functions are transferring to TSA, many of the FAA rules are no longer needed. This rulemaking removes these parts.

Further, several references in the operations rules for air carriers and commercial operators are changed. Sections 121.538 and 135.125 are revised to require operators to comply with TSA security rules instead of FAA security rules. Similarly, where this

rulemaking removes security requirements in part 129, it adds a requirement that foreign air carriers comply with TSA security rules, the same as that for part 121.

49 CFR—TSA Regulations

This rulemaking establishes the basic organization for TSA rules. The rules will appear in title 49, Code of Federal Regulations, Chapter XII, which includes parts 1500 through 1699. Subchapter A will contain administrative and procedural rules. Subchapter B will contain rules that apply to many modes of transportation. Subchapter C will contain rules for civil aviation security.

Outline of TSA Regulations

Chapter XII—Transportation Security Administration, Department of Transportation

Subchapter A—Administrative and Procedural Rules

Part 1500—Applicability, Terms and Abbreviations, and Rules of Construction

Part 1510—Passenger Civil Aviation Security Service Fees

Subchapter B—Security Rules for All Modes of Transportation

Part 1520—Protection of Sensitive Security Information

Subchapter C—Civil Aviation Security

Part 1540—Civil Aviation Security

Part 1542—Airport Security

Part 1544—Aircraft Operator Security: Air Carriers and Commercial Operators

Part 1546—Foreign Air Carrier Security

Part 1548—Indirect Air Carrier Security

Part 1550—Aircraft Operator Security Under General Operating and Flight Rules

49 CFR Part 1500—Applicability, Terms and Abbreviations

New part 1500 provides the applicability, and some terms and abbreviations, that apply to all TSA regulations. The definitions of “person” and “United States” are based on those in 49 U.S.C. 40102.

49 CFR Part 1520—Protection of Sensitive Security Information

New Part 1520 provides the rules for protecting sensitive security information. It is largely the same as 14 CFR part 191.

In general, Federal law and policy calls for release of information to the public, and TSA and DOT comply with these laws and policies. However, when release of information may compromise the safety or security of the traveling public, TSA and DOT protect that information from disclosure. Information that could help someone determine how to defeat security systems is protected from public disclosure under part 1520. In § 1520.7, TSA has designated this information as SSI. SSI includes information about security programs, vulnerability assessments, technical specifications of certain screening equipment and objects used to test screening equipment, and other information. Under § 1520.3, TSA does not disclose such information. Under § 1520.5, aircraft operators, foreign air carriers, and others are required to protect SSI from disclosure. They may disclose SSI only to those with a need to know. For instance, aircraft operator and foreign air carrier security programs are protected from public disclosure under § 1520.7(a).

Section 1520.1 includes the applicability and definitions. Section 1520.1(c) provides that the authority of the Under Secretary under this part may be further delegated.

Section 101(e) of ATSA amended 49 U.S.C. 40119(b) by making it applicable to information obtained or developed in carrying out security in all modes of transportation. Although the Under Secretary is given overall responsibility for carrying out section 40119(b), the heads of the operating administrations in the Department of Transportation have day-to-day responsibility for matters in their own modes of transportation. Hence, it is most efficient for these other administrations to exercise authority to protect SSI in their modes. Accordingly, § 1520(d) provides that the Under Secretary's authority under this part is also exercised, in consultation with the Under Secretary, by the Commandant of the United States Coast Guard, as to matters affecting and information held by the Coast Guard, and the Administrator of each DOT administration, as to matters affecting and information held by that administration, and any other individual formally designated to act in their capacity. The Under Secretary will be responsible for determining what information is SSI (see § 1520.7) and what persons are required to protect it under this part (see § 1520.5).

Section 1520.3 covers records and information withheld by the Transportation Security Administration. Section 1520.3(b)(3) is changed to reflect the change ATSA made to section 40119. TSA may protect information the release of which that would be detrimental to the safety of persons in transportation, not just air transportation.

Section 1520.5 covers records and information protected by others. Paragraph (a) identifies what persons are responsible for protecting SSI. For the most part, they are the same persons covered in current § 191.5. However, § 1520.5(a)(8) covers each person for which a vulnerability assessment has been authorized, approved, or funded by DOT, irrespective of mode of transportation. These assessments may identify ways in which the port or other facility could be vulnerable to attack, and may suggest corrective action. If this information were to fall into the wrong hands it could be used to attack the transportation system. Accordingly, the persons receiving these vulnerability assessments now are responsible under this rule to protect them from unauthorized disclosure. The vulnerability assessments themselves are added to the list of information that is determined to be SSI in § 1520.7(r).

In the course of applying for and qualifying for an air carrier certificate or operating certificate under 14 CFR part 119, an applicant that will be subject to part 1544 receives a copy of the standard security program. To ensure that applicants for certificates are required to protect SSI, we are adding § 1520.5(e). Paragraph (e) provides that references in part 1520 to an aircraft operator, airport operator, indirect air carrier, or foreign air carrier, include applicants. Thus, an applicant must restrict disclosure of the security program information that it receives. The same is true of an applicant for any other security program, such as a foreign air carrier security program.

When an individual receives SSI during training for a position with an airport operator, aircraft operator, indirect air carrier, or foreign air carrier, he or she is subject to part 1520. Section 1520.5(f) clarifies that he or she may not disclose this information.

Section 1520.7 describes SSI. Section 1520.7 defines what information and records are SSI and therefore are subject to the protections in §§ 1520.3 and 1520.5.

Section 191.7(a) covers any approved or standard security program for an airport operator, aircraft operator, foreign air carrier, or indirect air carrier. However, the agency has recently adopted other security programs, including those covering screening to be conducted by TSA, and those covering certain general aviation operations. Accordingly, § 1520.7(a) covers any approved, accepted, or standard security program under the rules listed in § 1520.5(a) (1) through (6).

Section 1520.7(m) provides that the locations at which particular screening methods or equipment are used, and the carriers that are authorized to use those

methods and equipment, are SSI. This information is SSI only if TSA has determined that, as to those particular screening methods or equipment, the criteria of 49 U.S.C. 40119 are met. In some cases, the exact screening methods used at different locations are not publicly released, particularly methods used for checked baggage and cargo. This may occur, for instance, when new technology is deployed. It may take time to deploy it widely, and we may determine that there is a significant security benefit to not letting any unauthorized person know where it may be used. This could affect a person's perception as to whether the introduction of a threat item was more likely to be detected, and might lead a person to attempt to target a location that the person assumes is less secure.

New paragraph (n) is added to cover the screener tests that screeners must complete under this rulemaking. These tests contain information that is in the security programs and must be protected in the same way.

New paragraph (o) protects the scores of screener tests administered under the rules listed in § 1520.5(a) (1) through (6). These scores could be used to determine which screening locations have screeners with better or worse scores, which might be viewed as a means to defeat the screening system. Therefore, while the scores will be used by TSA to identify weaknesses, they may not be disclosed.

New paragraph (p) covers performance data from screening systems, and from testing of screening systems. This includes information from threat image projection systems (TIP) and from other tests and data collections. The performance data is protected to prevent unauthorized persons from attempting to determine which screening locations or companies may be less successful at detecting weapons, explosives, and incendiaries. Performance data might also be used to determine which threat items are more difficult to detect.

Paragraph (q) covers threat images and descriptions of threat images for threat image projection systems. The threat images and descriptions would inform unauthorized persons as to what threat items screeners have been exposed to. This information might be used in attempting to defeat screening and must be protected.

As noted above, paragraph (r) covers information in a vulnerability assessment that has been authorized, approved, or funded by DOT, irrespective of mode of transportation. Note that as TSA continues to consider the security needs of all the modes of transportation in the current environment, we expect to identify other information that must be protected under this part in order to support transportation security. We may issue a notice of proposed rulemaking in the future to propose further changes. In that event, we may respond in that notice of proposed rulemaking to any comments to this final rule regarding this part.

The following distribution table is provided to illustrate how the current regulations relate to the newly added regulations.

Distribution Table

Current section

14 CFR part 191

New section

49 CFR part 1520

191.1

1520.1

191.3

1520.3

191.5

1520.5

191.7

1520.7

49 CFR Part 1540—Civil Aviation Security: General Rules

New part 1540 provides rules that cover all segments of civil aviation security. It also includes rules that govern individuals and other persons. Most of the rules in part 1540 are transferred from 14 CFR parts 107, 108, and 129.

Delegations

Section 1540.3 contains delegations of authority. The law vests the authority of TSA in the Under Secretary of Transportation for Security. See 49 U.S.C. 114. Where the Civil Aviation Security rules in subchapter C name the Under Secretary as exercising authority over a function, the Under Secretary or the Deputy Under Secretary exercise the authority. Any individual formally designated to act as the Under Secretary or the Deputy Under Secretary may also exercise the authority.

For the most part these rules simply refer to TSA as exercising authority. Where rules in this subchapter name TSA as exercising authority over a function, in addition to the Under Secretary, a designated official within TSA exercises the authority.

Terms Used in This Subchapter

Section 1540.5 contains definitions and descriptions for many of the terms used in this subchapter. Most terms are from FAA regulations, including 14 CFR parts 1, 107, and 108. Some are definitions in the statute governing TSA, 49 U.S.C. 40102. Others are discussed below.

“Aircraft operator” is used in part 108 to identify the air carriers and commercial operators that are subject to part 108. When this term was adopted the agency did not impose security regulations on aircraft operators other than air carriers or commercial operators. Recently, however, it has become necessary to require security measures for other aircraft operators, as discussed below under part 1550.

The term “aircraft operator” in § 1540.5 means a person who uses, causes to be used, or authorizes to be used an aircraft, with or without the right of legal control (as owner, lessee, or otherwise), (1) for the purpose of air navigation including the piloting of aircraft, or (2) on any part of the surface of an airport. This definition is based on the definition of “operate aircraft” in 49 U.S.C. 40102(32) and “operate” in 14 CFR part 1. The definition also states that in specific parts or sections, “aircraft operator” is used to refer to specific types of aircraft operators. For instance, new part 1544 uses “aircraft operator” to refer to those air carriers and commercial operators subject to that part.

“Indirect air carrier” is defined as any person or entity within the United States not in possession of an FAA air carrier operating certificate, that undertakes to engage indirectly in air transportation of property, and uses for all or any part of such transportation the services of a passenger air carrier. This does not include the United States Postal Service (USPS) or its representative while acting on the behalf of the USPS. This definition is in the aircraft operator standard security program and in the indirect air carrier standard security program.

“Person” is defined to include various entities and government authorities, as well as individuals, as it is in 49 U.S.C. 40102 and 14 CFR part 1.

“Screening function” is defined as the inspection of individuals and property for explosives, incendiaries, and weapons.

“Screening location” means each site at which individuals or property are inspected for the presence of any explosive, incendiary, or weapon. The checkpoint where passengers and their property are inspected with metal detectors, X-ray machines, and other methods is a screening location. So are the locations in the baggage make-up areas where checked baggage is inspected with an explosive detection system, and those locations where cargo is inspected.

There are some other wording changes in these rules worthy of note. FAA security rules often refer to “deadly or dangerous weapons.” However, all weapons are potentially

deadly or dangerous, so the excess words were removed and these TSA rules refer simply to “weapons.”

FAA rules often refer to “security systems, measures, or procedures” or other listing. However, the term “measures” encompasses all these terms. These TSA rules, therefore, often refer simply to “security measures,” which may include any systems, procedures, equipment, and other measures that accomplish the security goal.

Subpart B—Responsibilities of Passengers and Other Individuals and Persons

This subpart contains rules that apply to many persons, including airport operators, airport tenants, aircraft operators, foreign air carriers, and indirect air carriers, as well as employees of such entities, passengers, individuals at airports, and other individuals. This subpart includes rules that apply to all entities governed by subchapter C, and includes most of the security rules that apply to individuals rather than entities.

Section 1540.103 transfers the falsification rules that were in 14 CFR 107.9 and 108.7. The section applies to the whole subchapter. Criminal statutes, such as 18 U.S.C. 1001, prohibit intentional falsification and fraud. This section provides a civil remedy for similar conduct. See Amendment Nos. 107-9 and 108-4, Falsification of Security Records (61 FR 64242, Dec. 3, 1996) in which these rules were first adopted.

Section 1540.105 transfers §§ 107.11 and 108.9, regarding the security responsibilities of employees and other persons.

Section 1540.107 transfers § 108.201(c), which requires individuals who enter a sterile area to submit to screening. Transferring the section to part 1540 makes more clear that the rule applies to individuals entering a sterile area where screening is conducted by TSA, an aircraft operator, or a foreign air carrier.

Section 1540.109 is a new requirement prohibiting any person from interfering with, assaulting, threatening, or intimidating screening personnel in the performance of their screening duties. This section was proposed in the January 2000 screening company NPRM and received no negative comments. The rule prohibits interference that might distract or inhibit a screener from effectively performing his or her duties. This rule is necessary to emphasize the importance to safety and security of protecting screeners from undue distractions or attempts to intimidate. Previous instances of such distractions have included verbal abuse of screeners by passengers and certain air carrier employees.

A screener encountering such a situation must turn away from his or her normal duties to deal with the disruptive individual, which may affect the screening of other individuals. The disruptive individual may be attempting to discourage the screener from being as thorough as required. The screener may also need to summon a checkpoint screening supervisor and law enforcement officer, taking them away from other duties. Checkpoint disruptions potentially can be dangerous in these situations. This rule supports screeners' efforts to be thorough and helps prevent individuals from unduly interfering with the screening process. This rule is similar to 14 CFR 91.11, which prohibits interference with crewmembers aboard aircraft, and which also is essential to passenger safety and security.

This rule does not prevent good-faith questions from individuals seeking to understand the screening of their persons or their property. But abusive, distracting behavior, and attempts to prevent screeners from performing required screening, are subject to civil penalties under this rule.

This section applies to individuals interfering with screeners under subchapter C. Thus, if an individual interferes with a screener employed by a foreign air carrier, the individual violates § 1540.109.

This section applies to persons, not just individuals. Thus, a company or other entity could be found in violation of this section.

Note that if an individual is interfering with screening in violation of this rule, that individual potentially is also in violation of State or local laws, such as those relating to disturbing the peace. This rule does not preempt such State and local laws. Law enforcement personnel at the scene will determine whether to take action under State or local laws. TSA will also determine whether TSA civil penalty action is warranted for violation of § 1540.109.

Title 49, United States Code, 46503, was added in ATSA to provide a criminal penalty for interfering with security personnel. Section 1540.109 permits TSA to seek a civil penalty for actions that may not warrant criminal prosecution under section 46503 but do warrant legal enforcement action.

Section 1540.101 regarding the carriage of weapons, explosives, and incendiaries by individuals, is transferred from §§ 108.201(e) and (f), 108.203(e), and 129.27(a) and (b).

Section 1540.113 requires that each individual who holds an airman certificate, medical certificate, authorization, or license issued by the FAA must present it for inspection upon a request from TSA. As the need to ensure aviation security increases, it becomes important for TSA to be able to identify individuals who have access to aircraft, such as pilots and mechanics. This rule makes clear that TSA can require an airman to show his or her FAA certificate when requested. This rule is especially important for use with general aviation airmen who are not employed by air carriers, because they do not have identification media issued by air carriers or aircraft operators under Parts 1542 or 1544. For instance, TSA may need to make such a request in connection with §§ 1550.5 or 1550.7 security procedures. This section is similar to a number of sections in the FAA regulations, such as 14 CFR 61.3(l), 65.51(b), 65.89, and 65.105.

49 CFR Part 1542—Airport Security

New part 1542 provides the rules for airport operators. It is largely the same as 14 CFR part 107 (66 FR 37274, July 17, 2001) and § 107.209, Criminal history records checks, as amended (66 FR 63474, December 6, 2001). Some of the sections from part 107 were moved to part 1540 rather than part 1542 and are discussed in that portion of this document.

Law Enforcement Support

This part continues to state that the airport operator must provide law enforcement personnel to support its security program and to support each system for screening persons and accessible property required under parts 1544 or 1546. This screening includes the inspection of individuals and property, as well as other security measures such as those that take place at the ticket counter, such as Computer Assisted Passenger Prescreening System (CAPPS). TSA will be assuming responsibility for law enforcement presence for the inspection of individuals and property as necessary. When TSA assumes this duty at the airport, the airport will no longer need to perform this function on a routine basis. However, the airport operator will continue to provide a law enforcement presence and capability that is adequate to ensure the safety of passengers in accordance with 49 U.S.C. 44903(c), including covering screening before TSA law enforcement assumes this duty. Airport law enforcement will also be expected to back up TSA law

enforcement officers at screening locations should the need arise. TSA will work closely with law enforcement agencies at each airport to ensure that all agencies cooperate in providing for the safe and secure operation of the airport.

The recordkeeping requirements are changed to reflect TSA's participation in law enforcement support of airport security. Section 1542.221(b) requires that certain data be maintained, except as authorized by TSA. This includes data regarding weapons detected during passenger screening and information on arrests. To the extent that TSA is performing these functions or gathering this data, the airport operator will not have to.

Criminal History Records Checks (CHRC)

The current rule provides that the airport operator

may

exempt from the requirement to undergo a CHRC individuals in four categories. See § 107.209(m)(1) through (4). Section 138 of ATSA, however, provides in part that a CHRC “shall not be required under this subsection for an individual who is exempted under section 107.31(m)(1) or (2) * * * *” Section 107.31 was renumbered § 107.209. See 66 FR 37274, July 17, 2001.

Accordingly, in § 1542.209(m), what formerly was (m)(1) and (2) are renumbered to be paragraph (m)(1)(i) and (ii), and are revised to state that the airport operator must authorize the subject individuals to have unescorted access authority. These individuals include an employee of the Federal, state, or local government (including a law enforcement officer) who, as a condition of employment, has been subjected to an employment investigation that includes a criminal records check; and a crewmember of a foreign air carrier covered by an alternate security arrangement in the foreign air carrier's approved security program.

The other exemptions, formerly in (m)(3) and (4), are clarified. The airport operator may exempt certain individuals who have been continuously employed by another airport operator, airport user, or aircraft operator. In response to questions we have received, this section now states that the exemption does apply to contract employees of these entities, not only direct employees.

The following distribution table is provided to illustrate how the current regulations relate to the newly added regulations.

Distribution Table

Current section

14 CFR part 107

New section

49 CFR part 1542/1540

107.1

1542.1

107.3

1540.5

107.5

1542.3

107.7

1542.5

107.9 and 108.7

1540.103

107.11 and 108.9

1540.105

Subpart B (§§ 107.101-107.113)

Subpart B (§§ 1542.101-1542.113)

Subpart C (§§ 107.201-107.221)

Subpart C (§§ 1542.201-1542.221)

Subpart D (§§ 107.301-107.307)

Subpart D (§§ 1542.301-1542.307)

49 CFR Part 1544—Aircraft Operator Security

New part 1544 provides the rules for aircraft operators. It is largely the same as 14 CFR part 108 (66 FR 37330, July 17, 2001) and § 108.229, Criminal history records checks, as amended (66 FR 63474, December 6, 2001). Some of the sections from part 108 were moved to part 1500 and are discussed in that portion of this document. The other significant changes are discussed below.

Screening

Although TSA is taking over responsibility for most inspections of individuals and property in the United States, aircraft operators will continue to do some inspections, such as at foreign airports where the host government does not screen. Accordingly, this rule continues to include measures for aircraft operators to carry out when they inspect individuals or property for weapons, explosives, and incendiaries.

Section 1544.201(a) continues the requirement that the aircraft operator use the measures in its security program to prevent or deter the carriage of any explosive, incendiary, or weapon on or about each individual's person or accessible property before boarding an aircraft or entering a sterile area. There are a number of measures used to carry out this requirement, including use of the CAPPS, inspecting the individual and their accessible property, and other measures. Aircraft operators are also required to ensure that passengers and their accessible property are inspected for weapons, explosives, and incendiaries. The means of accomplishing these inspections are described in § 1544.207, discussed below.

Note that § 1544.201(e) continues the requirement that the aircraft operator not permit persons to have unauthorized explosives, incendiaries, or weapons when on board an aircraft. Although TSA will conduct most inspections, if the aircraft operator becomes aware that a person has an unauthorized weapon, the aircraft operator must not permit that weapon on board.

Sections 1544.203 and 1544.205 continue the requirements that each aircraft operator must use the procedures, facilities, and equipment described in its security program to prevent or deter the carriage of any unauthorized explosive or incendiary onboard aircraft in checked baggage and cargo. Section 1544.203(c) requires screening of all checked baggage, in compliance with section 110 of ATSA.

Section 1544.207 addresses the inspection of individuals, accessible property, checked baggage, and cargo. At locations within the United States at which TSA conducts such inspections, the aircraft operator's responsibility will be to ensure that passengers and property are inspected by TSA. The aircraft operator must follow procedures used at that airport to do so. For instance, the aircraft operator may not allow passengers to bypass inspection by bringing them to an aircraft from the ramp side, unless special arrangements are made to inspect the passengers.

Section 1544.207(c) provides that at locations where TSA or the host government is not conducting the

inspections, the aircraft operator will continue to be responsible for conducting the inspections. For instance, at most foreign airports aircraft operators are responsible for inspecting checked baggage. At such locations the aircraft operators must conduct the inspections in accordance with this part and their security program.

Section 1544.207(d) provides that at locations outside the United States at which the foreign government conducts inspections, the aircraft operator must ensure that the individuals and property have been inspected by the foreign government. The host government may inspect using government employees or using contractors hired by the government. In either case the aircraft operator must follow the procedures at that airport to ensure that the inspections are conducted before boarding the passengers and property.

Criminal History Records Checks (CHRC)

Section 1544.229 covers fingerprint-based criminal history records checks (CHRCs). This section requires all individuals who have unescorted access to the SIDA, and all individuals with authority to perform screening functions for passengers and accessible property, to undergo a CHRC. See 66 FR 63474 (December 6, 2001).

This section currently only covers screening functions for passengers and accessible property because, until ATSA, the statute providing authority for these checks only covered such functions. Further, it appears that almost all individuals who screen checked baggage and cargo are covered under the current rule, because they also screen passengers and accessible property, or because they have unescorted access to the SIDA where they handle checked baggage and cargo.

ATSA amended the statute as to CHRCs so that it also covers screening of checked baggage and cargo. See ATSA sections 110 and 49 U.S.C. 44901(a) and 44936. In addition, ATSA emphases the need to enhance security for checked baggage and cargo, and to expand the use of background checks. See ATSA section 110 and 136. TSA has determined, therefore, that we must ensure that all screeners of checked baggage and cargo have undergone a CHRC. This rule applies to new screeners as of February 17, 2002, and allows the aircraft operators until December 6, 2002, to conduct the CHRCs on current screeners. This is essentially the same as the December 2001 amendment to this section.

Further, this section requires that individuals who accept checked baggage for transport on behalf of the aircraft operator must undergo a CHRC. This includes ticket agents, sky caps, individuals at remote check-in sites at hotels, and others. Most such individuals currently have unescorted access to the SIDA and therefore are subject to the current rule. There are some, however, that are not currently subject to § 1544.229.

Individuals who accept checked baggage exercise important security functions, which may include such functions as identifying those items that require extra security, and guarding the baggage from tampering. It is important that such individuals can be relied on. Accordingly, this rule ensures that all such individuals will undergo a CHRC.

Note that this section does not cover individuals who accept cargo for transport (except for those who also screen cargo). Many such individual have unescorted access to the SIDA and therefore are subject to the rule. As to the others, TSA is now closely examining the cargo industry and determining what additional security measures may be advisable. We will provide for additional security measures in the future.

Paragraph (g) covers determining the arrest status of an individual when the CHRC results show an arrest for a disqualifying criminal offence but do not show the disposition of that offense. This paragraph states that the aircraft operator must determine, after investigation, that the arrest did not result in a disqualifying offense before the individual may serve in the covered position. This has been interpreted by some people to mean that there must be a disposition in order for the individual to serve. This was not intended. For instance, if the court is holding the case in abeyance, and there is no conviction or finding of not guilty by reason of insanity, the individual is not disqualified. This section is amended to better explain this meaning. Note that if the individual is later convicted he or she must report the conviction under paragraph (l). The same change is made to § 1542.209(g) for airport operators.

The requirements for screener qualifications and testing are now in subpart E, discussed below.

Screener Qualifications

Subpart E contains the qualifications and training standards for screeners. Current screeners will continue under the current standard (14 CFR 108.213 in the current rule, 49 CFR 1544.403 in this new rule) until November 19, 2002, when all screeners must meet the new standards. TSA is developing new training that it will provide to aircraft operators and foreign air carriers, and will order them to begin using on a specified date. The new standards will apply to those who first serve as screeners on and after that date.

Sections 1544.405 through 1544.411 cover the new screeners, who first serve as screeners on and after February 17, 2002. Most of the new standards come from ATSA. These provisions are essentially the same as those that TSA will use for screeners that it hires as employees to screen in the majority of airports. This rule will ensure that all screeners meet the same enhanced standards required under ATSA.

Section 1544.405, regarding the qualifications of screening personnel, incorporates the basic qualifications for screeners now in § 108.213, and additions from ATSA. Screeners must be U.S. citizens and have a high school diploma or a General Equivalency Diploma (GED). As authorized by ATSA, TSA may determine that the individual's education and experience are sufficient instead of the high school diploma or GED. Screeners must also have a satisfactory or better score on a screener selection test provided by TSA.

Section 1544.405 also sets out that those seeking to be screeners must have the fundamental physical and mental aptitude necessary to perform the job. These include the statutory requirements for adequate color perception, motor skills and related physical abilities in accordance with their assignment, and the ability to read, write, and speak in English.

Section 1544.407 covers the training, testing, and knowledge of individuals who perform screening functions. For those locations where the hiring and training of screeners remain an aircraft operator responsibility, the aircraft operator or foreign air carrier will be responsible to meet specific training and testing standards. Except as part of on-the-job training, no one may perform screening functions without having completed the required initial, recurrent, and specialized training, and no aircraft operator may use screeners who are not properly trained.

More specifically, for screeners who first serve on or after February 17, 2002, this section provides that training must be conducted using training programs that have been made available by TSA. Current standards allow for as little as 12 hours of classroom instruction; as required by statute, newly hired trainees must complete 40 hours of classroom training. The required training program will be made available through the aircraft operator's or foreign air carrier's Principal Security Inspector. The

material in the training program will take 40 hours to cover adequately.

Following classroom instruction, but before moving on to the on-the-job portion of the training, a trainee must pass the screener readiness test. On-the-job training must be for at least 60 hours, in accordance with ATSA. Although a trainee will be performing screening functions during on-the-job training, he or she must be closely supervised. Further testing is required after completion of on-the-job training before the screener is allowed to make independent judgments as a screener.

Under § 1544.407(g), aircraft operators are prohibited from allowing trainees to have access to sensitive security information (SSI) until the criminal history records check (required by § 1544.229) is successfully completed. As discussed in the changes to part 1520, certain information related to civil aviation security must be protected from unauthorized disclosure because it could be used to attempt to defeat the security system if it falls into the wrong hands.

Before allowing an individual to screen passengers and property that will be carried in the cabin of an aircraft, the aircraft operator must conduct a criminal history records check and verify that the individual does not have a disqualifying criminal offense. These requirements are set out at § 1544.229. Under this rule, that check must be completed before giving SSI to a trainee. Criminal history records checks are also required for individuals with unescorted access to security identification display areas (SIDA). They are conducted by either the airport operator or aircraft operator. See 49 U.S.C. 44936 and § 1544.229. See also Criminal History Records Checks, 66 FR 63474, Dec. 6, 2001.

Section 1544.409 covers the integrity of screener tests. Paragraph (a) makes it a violation to cheat or facilitate cheating on any screener test, such as by unauthorized copying, or giving or receiving improper assistance on the test. This section was proposed in the screening company NPRM and no commenters objected. This section emphasizes that cheating is not permitted on any training test administered to or taken by screening personnel, to include test monitors, screeners, screeners in charge, and checkpoint security supervisors. These requirements are similar to the testing regulations for pilots in 14 CFR 61.37.

Certain of the requirements apply “except as authorized,” to provide for the possibility that in the future, TSA would authorize such conduct as the use of certain outside materials. For instance, in pilot exams, the applicants may bring flight computers to perform required calculations.

In addition, § 1544.409(b) governs administering and monitoring screener readiness tests. Whenever a screener readiness test is to be performed, the aircraft operator must notify the agency. If a government official is not available at the time the test is being conducted, the test must be administered and monitored by a direct employee of the aircraft operator. Screening companies will not be permitted to monitor their own screener readiness tests. The monitor must not be a screener or supervisor, but must understand the nature of the test and be able to detect cheating. This does not require knowledge of the subject matter in which the screener is tested. For instance, the monitor must know what, if any, outside materials the screener is allowed to use and be able to observe whether the screener is using unauthorized materials. The monitor will be expected to call up the test on the computer for the trainee, to submit the computerized test for grading, and to make a record of the grade, such as by printing out the result.

We recognize that at some airports the aircraft operator may not have an employee who can perform this task. The rule provides that TSA may authorize an aircraft operator or foreign air carrier to use as a test monitor a person who is neither a direct employee nor a government employee. This ensures independence on the part of the person who is monitoring the test. For instance, an aircraft operator or foreign air carrier may have difficulty at small airports at which it has few flights. Such airports often have a pilot school or fixed base operator at which an FAA-designated examiner administers and monitors written pilot tests. Designated examiners are very familiar with monitoring tests to prevent cheating. An aircraft operator or foreign air carrier could consider arranging for the designated examiner to monitor the screener training tests.

If multiple aircraft operators or foreign air carriers contract with one screening company, TSA will authorize one of them to monitor the screener tests, or the responsibility may be rotated among them.

We are not requiring that the on-the-job training tests be monitored because of the logistical difficulties involved with screeners completing their 60 hours of on-the-job training at varied times.

Section 1544.411 covers the continuing qualifications for screening personnel. ATSA states that a screener must be fit for duty on a daily basis, unimpaired by illegal drugs, sleep deprivation, medication, or alcohol. Paragraph (a) of this section includes these requirements, but also makes it clear that they are intended as examples of potential causes of impairment rather than an exclusive list. We believe that fitness for duty is an absolute requirement for proper execution of a screener's responsibilities, and on-duty impairment is unacceptable, irrespective of the cause.

Under § 1544.411(b), aircraft operators are prohibited from allowing screeners who have not completed training, including on-the-job training, to exercise independent judgment about permitting individuals or property to pass into the sterile area of an airport or aboard an aircraft.

Under paragraph (c), whenever a screener fails a TSA operational test, he or she must undergo remedial training before being permitted to resume screening duties.

An annual proficiency review is required in paragraph (d). To ensure that a screener's skills are maintained over time, the aircraft operator's Ground Security Coordinator must conduct an annual evaluation of each person performing screening functions. This is the same requirement as set forth in § 108.213(d). This proficiency review must satisfactorily demonstrate that the screener continues to meet all qualification requirements, has performed satisfactorily, and demonstrates the current knowledge and skills necessary to courteously, vigilantly, and effectively perform screening functions.

Signs for X-ray Systems

The current rules require aircraft operators to post signs if they use X-ray technology, including explosive detection systems. See §§ 108.209(e) and 108.211(b). The signs alert people that items are inspected by X-rays and warn them to remove X-ray, scientific, and high-speed film from their accessible property and checked baggage.

This rule includes these sign requirements when the aircraft operator conducts screening using X-ray technology. If TSA is screening accessible property, however, the aircraft operator is not responsible for the signs. TSA will control the screening checkpoint and will post all necessary signs. This rule requires aircraft operators to post signs where checked baggage is accepted if either TSA or the aircraft operator screens checked baggage using X-ray technology. See §§ 1544.209(e) and 1544.211(b). The aircraft operators

continue to have control over locations where checked baggage is accepted and must post the signs to provide necessary information to the passengers. These signs are already posted in most places where they are needed. The aircraft operators will simply need to keep them posted.

The following distribution table is provided to illustrate how the current regulations relate to the newly added regulations.

Distribution Table

Current section 14 CFR part 108

New section 49 CFR part 1544/1540

108.1

1544.1

108.3

1540.5

108.5

1544.3

108.7 and 107.9

1540.103

108.9 and 107.11

1540.105

Subpart B (§§ 108.101-108.105)

Subpart B (§§ 1544.101-1544.105)

108.201(c)

1540.107

108.201(e) and (f)

1540.101

108.203 (e)

1540.101

108.205

1544.205

108.207

1544.209

108.209

1544.211

108.211

1544.213

108.213

1544.403

Subpart C (§§ 108.215-108.235)

Subpart C (§§ 1544.215-1544.235)

Subpart D (§§ 108.301-108.305)

Subpart D (§§ 1544.301-1544.305)

49 CFR Part 1546—Foreign Air Carrier Security

New part 1546 provides the rules for foreign air carriers that operate within the United States. It largely contains the same requirements as the security sections in 14 CFR part 129, including §§ 129.25, 129.26, 129.27, and 129.31. However, it has been reorganized for ease of use, and certain requirements are updated, such as the procedure for adopting and amending a security program. Further, several additional measures are amended or added, including signs for X-ray machines in § 1546.209, and screener qualifications and training in subpart E is added, reading essentially the same and for the same reasons as in part 1544.

Section 1546.209 (current § 129.26) covers the use of X-ray systems. The industry standard for X-ray systems is updated for foreign air carriers in § 1546.209(g), consistent with the requirement for aircraft operators in § 1544.209(g). The ASTM standard has been amended to provide an updated operational test procedure. Foreign air carriers currently are carrying out this procedure. This rule incorporates the new ASTM standard.

The following chart cross-references applicable sections of the regulations for foreign air carrier security that were moved from 14 CFR to 49 CFR:

Distribution Table

Current section/part

14 CFR part 129

New section/part

49 CFR part 1546/1540/1510

129.25(a)

1510.3

129.25(b)

1546.101

129.25(b)(1)

1546.101(a)

129.25(b)(2)

1546.101(b)

129.25(b)(3)

1546.101(c)

129.25(b)(4)

1546.101(d)

129.25(c)

1546.103(b)

129.25(d)

1546.103(c)

129.25(e)

1546.103(a)(1)

129.25(e)(1)

1546.103(a)(2)

129.25(e)

1546.105

129.25(f)

1546.301

129.25(g)

1546.201(c)

129.25(h)

1546.209(a)

129.25(i)

1546.209(b)

129.25(j)

1546.201(a), (b)

129.26

1546.207

129.27(a)

1546.201(d) and 1540.101

129.27(b)

1546.203(c) and 1540.101

129.31

1546.103(d)

49 CFR Part 1548—Indirect Air Carrier Security

New part 1548 provides the rules for indirect air carriers. It is largely the same as 14 CFR part 109. However, it has been reorganized for readability and to update certain requirements, such as the procedure for adopting and amending a security program.

In the screening company NPRM the FAA proposed to add a section on the FAA's inspection authority. No comments were received. Section 1548.3 contains TSA's inspection authority for indirect air carriers, which is the same as for aircraft operators under part 1544 and others under this subchapter.

Section 1548.5 and 1548.7 contain the requirements for security programs. These sections were proposed (in slightly different formats) in the January 2000 screening company NPRM and received no negative comments. Section 1548.5, Adoption and implementation, redesignates current § 109.3 as § 1548.5 and reorganizes it to be similar to § 1544.103. Section 1548.5 is largely the same as current § 109.3. New paragraph 1548.5(d)(2) makes clear that the security program at each office where cargo is accepted may be an electronic version.

Section 1548.7 restates and clarifies § 109.5 and makes it consistent with § 1544.105.

The following distribution table is provided to illustrate how the current regulations relate to the newly added regulations.

Distribution Table

Current

section

14 CFR part 109

New

section

49 CFR part 1548

109.1

1548.1

109.3

1548.5

109.5

1548.7

49 CFR Part 1550—Aircraft Security Under General Operating and Flight Rules

This part includes security requirements for aircraft operations other than those governed by other parts in this subchapter. It covers air carrier operations that are not covered by part 1544, such as corporate and private aircraft, and other operations. Part 1550 now provides the rules for aircraft operators covered under SFAR 91 (66 FR 50531, Oct. 4, 2001). It contains the same requirements as those in the SFAR, but is reorganized.

In addition, § 1550.3 describes TSA's inspection authority for aircraft operators under this part. It is largely the same as for aircraft operators under part 1544 and others under this subchapter, except that it does not include references to access to the SIDA, because they are not relevant in this part.

Section 1550.5 is essentially the same as SFAR 91 paragraph 1(a).

Section 1550.7 is essentially the same as SFAR 91 paragraph 1(b), except that the size of aircraft covered is expanded. SFAR 91 covers aircraft with a maximum certificated takeoff weight of more than 12,500 pounds. However, in ATSA Congress has provided that the agency must require increased security for aircraft of 12,500 pounds or more. See ATSA sections 113 and 132(a). Accordingly, § 1550.7 provides that TSA may require additional measures for operators of aircraft 12,500 pounds or more maximum certificated takeoff weight when TSA determines that a threat exists.

The following distribution table is provided to illustrate how the current regulations relate to the newly added regulations.

Distribution Table

Current section

SFAR No. 91 in 14 CFR part 91

New section

49 CFR part 1550

1(a)

1550.5

1(b)

1550.7

2

§§ 1550.5 and 1550.7

3

§§ 1550.5 and 1550.7

4

§§ 1550.5 and 1550.7

5

1550.1

Good Cause for Immediate Adoption

This action mostly is an administrative action moving rules from one title to another in the Code of Federal Regulations. In addition, ATSA imposes a statutory mandate for TSA to improve screener qualifications and training, checked baggage security, and cargo security. 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, the Under Secretary finds that notice and public comment under 5 U.S.C. 553(b) are impracticable and contrary to the public interest. We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do without incurring expense or delay. We may further amend this rule in light of the comments we receive.

Paperwork Reduction Act

This final rule contains information collection requirements that were previously approved for parts 107 (2120-0075, 2120-0554, 2120-0628), 108 (2120-0098, 2120-0554, 2120-0577, 2120-0628, 2120-0642), 109 (2120-0505), and 129 (2120-0638), in accordance with the Paperwork Reduction Act (44 U.S.C. Section 3507(d)). TSA is submitting to the Office of Management and Budget a supplemental justification requesting that these approvals be transferred from the FAA to TSA.

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 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 and foreign air carriers. An assessment will be conducted in the future. In any event, the current security threat requires 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

The 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. The FAA and TSA have assessed the potential effect of this final rule and have 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 Public Law 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. Therefore, the FAA and TSA have 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) Public Law 94-163, as amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined that this rule is not a major regulatory action under the provisions of the EPCA.

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

.

List of Subjects

14 CFR Part 91

Afghanistan, Agriculture, Air traffic control, Aircraft, Airmen, Airports, Aviation safety, Canada, Cuba, Ethiopia, Freight, Mexico, Noise control, Political candidates, Reporting and recordkeeping requirements, Yugoslavia.

14 CFR Part 107

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

14 CFR Part 108

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

14 CFR Part 109

Air carriers, Aircraft, Freight forwarders, Security measures.

14 CFR Part 121

Air carriers, Aircraft, Airmen, Alcohol abuse, Aviation safety, Charter flights, Drug abuse, Drug testing, Reporting and recordkeeping requirements, Safety, Transportation.

14 CFR Part 129

Air carriers, Aircraft, Aviation safety, Security measures.

14 CFR Part 135

Air taxis, Aircraft, Airmen, Alcohol abuse, Aviation safety, Drug abuse, Drug testing, Reporting and recordkeeping requirements.

14 CFR Part 139

Air carriers, Airports, Aviation safety, Reporting and recordkeeping requirements.

14 CFR Part 191

Air transportation, Security measures.

49 CFR Part 1500

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

49 CFR Part 1510

Accounting, Auditing, Air carriers, Air transportation, Enforcement, Federal oversight, Foreign air carriers, Reporting and recordkeeping requirements, Security measures.

49 CFR Part 1520

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

49 CFR Part 1540

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

49 CFR Part 1542

Air carriers, Aircraft, Aviation safety, Security measures.

49 CFR Part 1544

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

49 CFR Part 1546

Aircraft, Aviation safety, Foreign air carriers, Incorporation by reference, Reporting and recordkeeping requirements, Security measures.

49 CFR Part 1548

Air transportation, Reporting and recordkeeping requirements, Security measures.

49 CFR Part 1550

Aircraft, Security measures.

Federal Aviation Administration

14 CFR Chapter I

Authority and Issuance

For the reasons stated in the preamble and under the authority of 49 U.S.C. 40102, the Federal Aviation Administration amends 14 CFR chapter I as follows:

PART 91—GENERAL OPERATING AND FLIGHT RULES

1. The authority citation for part 91 continues to read as follows:

Authority:

49 U.S.C. 106(g), 1155, 40103, 40113, 40120, 44101, 44111, 44701, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, articles 12 and 29 of the Convention on International Civil Aviation (61 stat. 1180).

Special Federal Aviation Regulation No. 91—[Removed]

2. Remove SFAR No. 91 from 14 CFR part 91.

PART 107—[REMOVED]

3. Remove 14 CFR part 107.

PART 108—[REMOVED]

4. Remove 14 CFR part 108.

PART 109—[REMOVED]

5. Remove 14 CFR part 109.

PART 121—OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS

6. Revise the authority citation for part 121 to read as follows:

Authority:

49 U.S.C. 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 46105.

7. Revise § 121.538 to read as follows:

§ 121.538

Aircraft security.

Certificate holders conducting operations under this part must comply with the applicable security requirements in 49 CFR chapter XII.

PART 129—OPERATIONS: FOREIGN AIR CARRIERS AND FOREIGN OPERATORS OF U.S.-REGISTERED AIRCRAFT ENGAGED IN COMMON CARRIAGE

8. Revise the authority citation for part 129 to read as follows:

Authority:

49 U.S.C. 106(g), 40104-40105, 40113, 40119, 41706, 44701-44702, 44712, 44716-44717, 44722.

9. Revise § 129.25 to read as follows:

§ 129.25

Airplane security.

Foreign air carriers conducting operations under this part must comply with the applicable security requirements in 49 CFR chapter XII.

§§ 129.26, 129.27, and 129.31

[Removed]

10. Remove §§ 129.26, 129.27, and 129.31.

PART 135—OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT

11. The authority citation for part 135 continues to read as follows:

Authority:

49 U.S.C. 106(g), 41706, 44113, 44101, 44701-44702, 44705, 44709, 44711-44713, 44715-44717, 44722.

12. Revise § 135.125 to read as follows:

§ 135.125

Aircraft security.

Certificate holders conducting operators conducting operations under this part must comply with the applicable security requirements in 49 CFR chapter XII.

PART 139—CERTIFICATION AND OPERATIONS: LAND AIRPORTS SERVING CERTAIN AIR CARRIERS

13. The authority citation for part 139 continues to read as follows:

Authority:

49 U.S.C. 106 (g), 40113, 44701-44706, 44709, 44719.

14. Section 139.325(h) is revised to read as follows:

§ 139.325

Airport emergency plan.

(h) Each airport subject to 49 CFR part 1542, Airport Security, shall ensure that instructions for response to paragraphs (b)(2) and (b)(6) of this section in the airport emergency plan are consistent with its approved security program.

PART 191—[REMOVED]

15. Remove 14 CFR part 191.

Issued in Washington, DC on February 14, 2002.

Jane F. Garvey,

Administrator.

Transportation Security Administration

49 CFR Chapter XII

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

1. Add new subchapter A and part 1500 to Chapter XII to read as follows:

SUBCHAPTER A—ADMINISTRATIVE AND PROCEDURAL RULES

PART 1500—APPLICABILITY, TERMS, AND ABBREVIATIONS

Sec.

1500.1

Applicability.

1500.3

Terms and abbreviations used in this chapter.

1500.5

Rules of construction.

Authority:

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

§ 1500.1

Applicability.

This chapter, this subchapter, and this part apply to all matters regulated by the Transportation Security Administration.

§ 1500.3

Terms and abbreviations used in this chapter.

As used in this chapter:

Person

means an individual, corporation, company, association, firm, partnership, society, joint-stock company, or governmental authority. It includes a trustee, receiver, assignee, successor, or similar representative of any of them.

Transportation Security Regulations (TSR)

means the regulations issued by the Transportation Security Administration, in title 49 of the Code of Federal Regulations, chapter XII, which includes parts 1500 through 1699.

TSA

means the Transportation Security Administration.

Under Secretary

means the Under Secretary of Transportation for Security.

United States,

in a geographical sense, means the States of the United States, the District of Columbia, and territories and possessions of the United States, including the territorial sea and the overlying airspace.

§ 1500.5

Rules of construction.

(a) In this chapter, unless the context requires otherwise:

(1) Words importing the singular include the plural.

(2) Words importing the plural include the singular.

(3) Words importing the masculine gender include the feminine.

(b) In this chapter, the word:

(1) “Must” is used in an imperative sense;

(2) “May” is used in a permissive sense to state authority or permission to do the act prescribed, and the words “no person may * * *” or “a person may not * * *” mean that no person is required, authorized, or permitted to do the act prescribed; and

(3) “Includes” means “includes but is not limited to”.

2. Existing part 1510 is transferred to subchapter A.

3. Add new subchapter B and part 1520 to Chapter XII.

SUBCHAPTER B—SECURITY RULES FOR ALL MODES OF TRANSPORTATION

PART 1520—PROTECTION OF SENSITIVE SECURITY INFORMATION

Sec.

1520.1

Applicability and definitions.

1520.3

Records and information withheld by the Department of Transportation.

1520.5

Records and information protected by others.

1520.7

Sensitive security information.

Authority:

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

§ 1520.1

Applicability and definitions.

(a) This part governs the release, by the Transportation Security Administration and by other persons, of records and information that has been obtained or developed during security activities or research and development activities.

(b) For purposes of this part:

Record

includes any writing, drawing, map, tape, film, photograph, or other means by which information is preserved, irrespective of format.

Vulnerability assessment

means any examination of a transportation system, vehicle, or facility to determine its vulnerability to unlawful interference.

(c) The authority of the Under Secretary under this part may be further delegated within TSA.

(d) The Under Secretary's authority under this part to withhold or to disclose sensitive security information is also exercised, in consultation with the Under Secretary, by the Commandant of the United States Coast Guard, as to matters affecting and information held by the Coast Guard, and the Administrator of each DOT administration, as to matters affecting and information held by that administration, and any individual formally designated to act in their capacity.

§ 1520.3

Records and information withheld by the Department of Transportation.

(a) Except as provided in paragraphs (c) and (d) of this section, and notwithstanding the Freedom of Information Act (5 U.S.C. 552) or other laws, the records and information described in § 1520.7 and paragraph (b) of this section are not available for public inspection or copying, nor is information contained in those records released to the public.

(b) Section 1520.7 describes the information that TSA prohibits from disclosure. The Under Secretary prohibits disclosure of information developed in the conduct of security or research and development activities under 49 U.S.C. 40119 if, in the opinion of the Under Secretary, the disclosure of such information would:

(1) Constitute an unwarranted invasion of privacy (including, but not limited to, information contained in any personnel, medical, or similar file);

(2) Reveal trade secrets or privileged or confidential information obtained from any person; or

(3) Be detrimental to the safety of persons traveling in transportation.

(c) If a record contains information that the Under Secretary determines cannot be disclosed under this part, but also contains information that can be disclosed, the latter information, on proper Freedom of Information Act request, will be provided for public inspection and copying. However, if it is impractical to redact the requested information from the document, the entire document will be withheld from public disclosure.

(d) After initiation of legal enforcement action, if the alleged violator or designated representative so requests, the Chief Counsel, or designee, may provide copies of portions of the enforcement investigative report (EIR), including sensitive security information. This information may be released only to the alleged violator or designated representative for the sole purpose of providing the information necessary to prepare a response to the allegations contained in the legal enforcement action document. Such information is not released under the Freedom of Information Act. Whenever such documents are provided to an alleged violator or designated representative, the Chief Counsel or designee advises the alleged violator or designed representative that—

(1) The documents are provided for the sole purpose of providing the information necessary to respond to the allegations contained in the legal enforcement action document; and

(2) Sensitive security information contained in the documents provided must be maintained in a confidential manner to prevent compromising civil aviation security, as provided in § 1520.5.

§ 1520.5

Records and information protected by others.

(a)

Duty to protect information.

The following persons must restrict disclosure of and access to sensitive security information described in § 1520.7 (a) through (g), (j), (k), and (m) through (r), and, as applicable, § 1520.7 (l) to persons with a need to know and must refer requests by other persons for such information to TSA or the applicable DOT administration:

(1) Each person employed by, contracted to, or acting for a person listed in this paragraph (a).

(2) Each airport operator under part 1542 of this chapter.

(3) Each aircraft operator under part 1544 of this chapter.

(4) Each foreign air carrier under part 1546 of this chapter.

(5) Each indirect air carrier under part 1548 of this chapter.

(6) Each aircraft operator under § 1550.5 of this chapter.

(7) Each person receiving information under § 1520.3 (d).

(8) Each person for which a vulnerability assessment has been authorized, approved, or funded by DOT, irrespective of the mode of transportation.

(b)

Need to know.

For some specific sensitive security information, the Under Secretary may make a finding that only specific persons or classes of persons have a need to know. Otherwise, a person has a need to know sensitive security information in each of the following circumstances:

(1) When the person needs the information to carry out DOT-approved, accepted, or directed security duties.

(2) When the person is in training to carry out DOT-approved, accepted, or directed security duties.

(3) When the information is necessary for the person to supervise or otherwise manage the individuals carrying to carry out DOT-approved, accepted, or directed security duties.

(4) When the person needs the information to advise the persons listed in paragraph (a) of this section regarding any DOT security-related requirements.

(5) When the person needs the information to represent the persons listed in paragraph (a) of this section in connection with any judicial or administrative proceeding regarding those requirements.

(c)

Release of sensitive security information.

When sensitive security information is released to unauthorized persons, any person listed in paragraph (a) of this section or individual with knowledge of the release, must inform DOT.

(d)

Violation.

Violation of this section is grounds for a civil penalty and other enforcement or corrective action by DOT.

(e)

Applicants.

Wherever this part refers to an aircraft operator, airport operator, foreign air carrier, or indirect air carrier, those terms also include applicants for such authority.

(f)

Trainees.

An individual who is in training for a position is considered to be employed by, contracted to, or acting for persons listed in paragraph (a) of this section, regardless of whether that individual is currently receiving a wage or salary or otherwise is being paid.

§ 1520.7

Sensitive security information.

Except as otherwise provided in writing by the Under Secretary as necessary in the interest of safety of persons in transportation, the following information and records containing such information constitute sensitive security information:

(a) Any approved, accepted, or standard security program under the rules listed in § 1520.5(a)(1) through (6), and any security program that relates to United States mail to be transported by air (including that of the United States Postal Service and of the Department of Defense); and any comments, instructions, or implementing guidance pertaining thereto.

(b) Security Directives and Information Circulars under § 1542.303 or § 1544.305 of this chapter, and any comments, instructions, or implementing guidance pertaining thereto.

(c) Any selection criteria used in any security screening process, including for persons, baggage, or cargo under the rules listed in § 1520.5(a)(1) through (6).

(d) Any security contingency plan or information and any comments, instructions, or implementing guidance pertaining thereto under the rules listed in § 1520.5(a)(1) through (6).

(e) Technical specifications of any device used for the detection of any deadly or dangerous weapon, explosive, incendiary, or destructive substance under the rules listed in § 1520.5(a)(1) through (6).

(f) A description of, or technical specifications of, objects used to test screening equipment and equipment parameters under the rules listed in § 1520.5(a)(1) through (6).

(g) Technical specifications of any security communications equipment and procedures under the rules listed in § 1520.5(a)(1) through (6).

(h) As to release of information by TSA: Any information that TSA has determined may reveal a systemic vulnerability of the aviation system, or a vulnerability of aviation facilities, to attack. This includes, but is not limited to, details of inspections, investigations, and alleged violations and findings of violations of 14 CFR parts 107, 108, or 109 and 14 CFR 129.25, 129.26, or 129.27 in effect prior to November 14, 2001 (see 14 CFR parts 60 to 139 revised as of January 1, 2001); or parts 1540, 1542, 1544, 1546, 1548, or § 1550.5 of this chapter, and any information that could lead the disclosure of such details, as follows:

(1) As to events that occurred less than 12 months before the date of the release of the information, the following are not released: the name of an airport where a violation occurred, the regional identifier in the case number, a description of the violation, the regulation allegedly violated, and the identity of the aircraft operator in connection with specific locations or specific security procedures. TSA may release summaries of an aircraft operator's total security violations in a specified time range without identifying specific violations. Summaries may include total enforcement actions, total proposed civil penalty amounts, total assessed civil penalty amounts, number of cases opened, number of cases referred to TSA or FAA counsel for legal enforcement action, and number of cases closed.

(2) As to events that occurred 12 months or more before the date of the release of information, the specific gate or other location on an airport where an event occurred is not released.

(3) The identity of TSA or FAA special agent who conducted the investigation or inspection.

(4) Security information or data developed during TSA or FAA evaluations of the aircraft operators and airports and the implementation of the security programs, including aircraft operator and airport inspections and screening point tests or methods for evaluating such tests under the rules listed in § 1520.5(a)(1) through (6).

(i) As to release of information by TSA: Information concerning threats against transportation.

(j) Specific details of aviation security measures whether applied directly by the TSA or entities subject to the rules listed in § 1520.5(a)(1) through (6). This includes, but is not limited to, information concerning specific numbers of Federal Air Marshals, deployments or missions, and the methods involved in such operations.

(k) Any other information, the disclosure of which TSA has prohibited under the criteria of 49 U.S.C. 40119.

(l) Any draft, proposed, or recommended change to the information and records identified in this section.

(m) The locations at which particular screening methods or equipment are used under the rules listed in § 1520.5(a)(1) through (6) if TSA determines that the information meets the criteria of 49 U.S.C. 40119.

(n) Any screener test used under the rules listed in § 1520.5(a)(1) through (6).

(o) Scores of tests administered under the rules listed in § 1520.5(a)(1) through (6).

(p) Performance data from screening systems, and from testing of screening systems under the rules listed in § 1520.5(a)(1) through (6).

(q) Threat images and descriptions of threat images for threat image projection systems under the rules listed in § 1520.5(a)(1) through (6).

(r) Information in a vulnerability assessment that has been authorized, approved, or funded by DOT, irrespective of mode of transportation.

4. Add new subchapter C and part 1540 to Chapter XII.

SUBCHAPTER C—CIVIL AVIATION SECURITY

PART 1540—CIVIL AVIATION SECURITY: GENERAL RULES

Subpart A—General

Sec.

1540.1

Applicability of this subchapter and this part.

1540.3

Delegation of authority.

1540.5

Terms used in this subchapter.

Subpart B—Responsibilities of Passengers and Other Individuals and Persons

1540.101

Applicability of this subpart.

1540.103

Fraud and intentional falsification of records.

1540.105

Security responsibilities of employees and other persons.

1540.107

Submission to screening and inspection.

1540.109

Prohibition against interference with screening personnel.

1540.111

Carriage of weapons, explosives, and incendiaries by individuals.

1540.113

Inspection of airman certificate.

Authority:

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

Subpart A—General

§ 1540.1

Applicability of this subchapter and this part.

This subchapter and this part apply to persons engaged in aviation-related activities.

§ 1540.3

Delegation of authority.

(a) Where the Under Secretary is named in this subchapter as exercising authority over a function, the authority is exercised by the Under Secretary or the Deputy Under Secretary, or any individual formally designated to act as the Under Secretary or the Deputy Under Secretary.

(b) Where TSA or the designated official is named in this subchapter as exercising authority over a function, the authority is exercised by the official designated by the Under Secretary to perform that function.

§ 1540.5

Terms used in this subchapter.

In addition to the terms in part 1500 of this chapter, the following terms are used in this subchapter:

Air operations area (AOA)

means a portion of an airport, specified in the airport security program, in which security measures specified in this part are carried out. This area includes aircraft movement areas, aircraft parking areas, loading ramps, and safety areas, for use by aircraft regulated under 49 CFR part 1544 or 1546, and any adjacent areas (such as general aviation areas) that are not separated by adequate security systems, measures, or procedures. This area does not include the secured area.

Aircraft operator

means a person who uses, causes to be used, or authorizes to be used an aircraft, with or without the right of legal control (as owner, lessee, or otherwise), for the purpose of air navigation including the piloting of aircraft, or on any part of the surface of an airport. In specific parts or sections of this subchapter, “aircraft operator” is used to refer to specific types of operators as described in those parts or sections.

Airport operator

means a person that operates an airport serving a aircraft operator or a foreign air carrier required to have a security program under part 1544 or 1546 of this chapter.

Airport security program

means a security program approved by TSA under § 1542.101 of this chapter.

Airport tenant

means any person, other than an aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter, that has an agreement with the airport operator to conduct business on airport property.

Airport tenant security program

means the agreement between the airport operator and an airport tenant that specifies the measures by which the tenant will perform security functions, and approved by TSA, under § 1542.113 of this chapter.

Approved,

unless used with reference to another person, means approved by TSA.

Cargo

means property tendered for air transportation accounted for on an air waybill. All accompanied commercial courier consignments, whether or not accounted for on an air waybill, are also classified as cargo. Aircraft operator security programs further define the term “cargo.”

Checked baggage

means property tendered by or on behalf of a passenger and accepted by an aircraft operator for transport, which is inaccessible to passengers during flight. Accompanied commercial courier consignments are not classified as checked baggage.

Escort

means to accompany or monitor the activities of an individual who does not have unescorted access authority into or within a secured area or SIDA.

Exclusive area

means any portion of a secured area, AOA, or SIDA, including individual access points, for which an aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter has assumed responsibility under § 1542.111 of this chapter.

Exclusive area agreement

means an agreement between the airport operator and an aircraft operator or a foreign air carrier that has a security program under parts 1544 or 1546 of this chapter that permits such an aircraft operator or foreign air carrier to assume responsibility for specified security measures in accordance with § 1542.111 of this chapter.

FAA

means the Federal Aviation Administration.

Indirect air carrier

means any person or entity within the United States not in possession of an FAA air carrier operating certificate, that undertakes to engage indirectly in air transportation of property, and uses for all or any part of such transportation the services of a passenger air carrier. This does not include the United States Postal Service (USPS) or its representative while acting on the behalf of the USPS.

Loaded firearm

means a firearm that has a live round of ammunition, or any component thereof, in the chamber or cylinder or in a magazine inserted in the firearm.

Passenger seating configuration

means the total maximum number of seats for which the aircraft is type certificated that can be made available for passenger use aboard a flight, regardless of the number of seats actually installed, and includes that seat in certain aircraft that may be used by a representative of the FAA to conduct flight checks but is available for revenue purposes on other occasions.

Private charter

means any aircraft operator flight—

(1) For which the charterer engages the total passenger capacity of the aircraft for the carriage of passengers; the passengers are invited by the charterer; the cost of the flight is borne

entirely by the charterer and not directly or indirectly by any individual passenger; and the flight is not advertised to the public, in any way, to solicit passengers.

(2) For which the total passenger capacity of the aircraft is used for the purpose of civilian or military air movement conducted under contract with the Government of the United States or the government of a foreign country.

Public charter

means any charter flight that is not a private charter.

Scheduled passenger operation

means an air transportation operation (a flight) from identified air terminals at a set time, which is held out to the public and announced by timetable or schedule, published in a newspaper, magazine, or other advertising medium.

Screening function

means the inspection of individuals and property for weapons, explosives, and incendiaries.

Screening location

means each site at which individuals or property are inspected for the presence of weapons, explosives, or incendiaries.

Secured area

means a portion of an airport, specified in the airport security program, in which certain security measures specified in part 1542 of this chapter are carried out. This area is where aircraft operators and foreign air carriers that have a security program under part 1544 or 1546 of this chapter enplane and deplane passengers and sort and load baggage and any adjacent areas that are not separated by adequate security measures.

Security Identification Display Area (SIDA)

means a portion of an airport, specified in the airport security program, in which security measures specified in this part are carried out. This area includes the secured area and may include other areas of the airport.

Sterile area

means a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which the access generally is controlled by TSA, or by an aircraft operator under part 1544 of this chapter or a foreign air carrier under part 1546 of this chapter, through the screening of persons and property.

Unescorted access authority

means the authority granted by an airport operator, an aircraft operator, foreign air carrier, or airport tenant under part 1542, 1544, or 1546 of this chapter, to individuals to gain entry to, and be present without an escort in, secured areas and SIDA's of airports.

Subpart B—Responsibilities of Passengers and Other Individuals and Persons

§ 1540.101

Applicability of this subpart.

This subpart applies to individuals and other persons.

§ 1540.103

Fraud and intentional falsification of records.

No person may make, or cause to be made, any of the following:

(a) Any fraudulent or intentionally false statement in any application for any security program, access medium, or identification medium, or any amendment thereto, under this subchapter.

(b) Any fraudulent or intentionally false entry in any record or report that is kept, made, or used to show compliance with this subchapter, or exercise any privileges under this subchapter.

(c) Any reproduction or alteration, for fraudulent purpose, of any report, record, security program, access medium, or identification medium issued under this subchapter.

§ 1540.105

Security responsibilities of employees and other persons.

(a) No person may:

(1) Tamper or interfere with, compromise, modify, attempt to circumvent, or cause a person to tamper or interfere with, compromise, modify, or attempt to circumvent any security system, measure, or procedure implemented under this subchapter.

(2) Enter, or be present within, a secured area, AOA, SIDA or sterile area without complying with the systems, measures, or procedures being applied to control access to, or presence or movement in, such areas.

(3) Use, allow to be used, or cause to be used, any airport-issued or airport-approved access medium or identification medium that authorizes the access, presence, or movement of persons or vehicles in secured areas, AOA's, or SIDA's in any other manner than that for which it was issued by the appropriate authority under this subchapter.

(b) The provisions of paragraph (a) of this section do not apply to conducting inspections or tests to determine compliance with this part or 49 U.S.C. Subtitle VII authorized by:

(1) TSA, or

(2) The airport operator, aircraft operator, or foreign air carrier, when acting in accordance with the procedures described in a security program approved by TSA.

§ 1540.107

Submission to screening and inspection.

No individual may enter a sterile area without submitting to the screening and inspection of his or her person and accessible property in accordance with the procedures being applied to control access to that area under this subchapter.

§ 1540.109

Prohibition against interference with screening personnel.

No person may interfere with, assault, threaten, or intimidate screening personnel in the performance of their screening duties under this subchapter.

§ 1540.111

Carriage of weapons, explosives, and incendiaries by individuals.

(a)

On an individual's person or accessible property—prohibitions.

Except as provided in paragraph (b) of this section, an individual may not have a weapon, explosive, or incendiary, on or about the individual's person or accessible property—

(1) When performance has begun of the inspection of the individual's person or accessible property before entering a sterile area;

(2) When the individual is entering or in a sterile area; or

(3) When the individual is attempting to board or onboard an aircraft for which screening is conducted under § 1544.201 or § 1546.201 of this chapter.

(b)

On an individual's person or accessible property—permitted carriage of a weapon.

Paragraph (a) of this section does not apply as to carriage of firearms and other weapons if the individual is one of the following:

(1) Law enforcement personnel required to carry a firearm or other weapons while in the performance of law enforcement duty at the airport.

(2) An individual authorized to carry a weapon in accordance with §§ 1544.219, 1544.221, 1544.223, or 1546.211 of this chapter.

(3) An individual authorized to carry a weapon in a sterile area under a security program.

(c)

In checked baggage.

A passenger may not transport or offer for transport in checked baggage:

(1) Any loaded firearm(s).

(2) Any unloaded firearm(s) unless—

(i) The passenger declares to the aircraft operator, either orally or in writing, before checking the baggage, that the passenger has a firearm in his or her bag and that it is unloaded;

(ii) The firearm is unloaded;

(iii) The firearm is carried in a hard-sided container; and

(iv) The container in which it is carried is locked, and only the passenger retains the key or combination.

(3) Any unauthorized explosive or incendiary.

(d)

Ammunition.

This section does not prohibit the carriage of ammunition in checked baggage or in the same container as a firearm. Title 49 CFR part 175 provides additional requirements governing carriage of ammunition on aircraft.

§ 1540.113

Inspection of airman certificate.

Each individual who holds an airman certificate, medical certificate, authorization, or license issued by the FAA must present it for inspection upon a request from TSA.

5. Add new part 1542 to Chapter XII, Subchapter C.

PART 1542—AIRPORT SECURITY

Subpart A—General

Sec.

1542.1

Applicability of this part.

1542.3

Airport security coordinator.

1542.5

Inspection authority.

Subpart B—Airport Security Program

1542.101

General requirements.

1542.103

Content.

1542.105

Approval and amendments.

1542.103

Changed conditions affecting security.

1542.109

Alternate means of compliance.

1542.111

Exclusive area agreements.

1542.113

Airport tenant security programs.

Subpart C—Operations

1542.201

Security of the secured area.

1542.203

Security of the air operations area (AOA).

1542.205

Security of the security identification display area (SIDA).

1542.207

Access control systems.

1542.209

Fingerprint-based criminal history records checks (CHRC).

1542.211

Identification systems.

1542.213

Training.

1542.215

Law enforcement support.

1542.217

Law enforcement personnel.

1542.219

Supplementing law enforcement personnel.

1542.221

Records of law enforcement response.

Subpart D—Contingency Measures

1542.301

Contingency plan.

1542.303

Security Directives and Information Circulars.

1542.305

Public advisories.

1542.307

Incident management.

Authority:

49 U.S.C. 114, 5103, 40119, 44901-44905, 44907, 44913-44914, 44916-44917, 44935-44936, 44942, 46105.

Subpart A—General

§ 1542.1

Applicability of this part.

This part describes aviation security rules governing:

(a) The operation of airports regularly serving aircraft operations required to be under a security program under part 1544 of this chapter, as described in this part.

(b) The operation of airport regularly serving foreign air carrier operations required to be under a security program under part 1546 of this chapter, as described in this part.

(c) Each airport operator that receives a Security Directive or Information Circular and each person who receives information from a Security Directive or Information Circular issued by the Designated official for Civil Aviation Security.

§ 1542.3

Airport security coordinator.

(a) Each airport operator must designate one or more Airport Security Coordinator(s) (ASC) in its security program.

(b) The airport operator must ensure that one or more ASCs:

(1) Serve as the airport operator's primary and immediate contact for security-related activities and communications with TSA. Any individual designated as an ASC may perform other duties in addition to those described in this paragraph (b).

(2) Is available to TSA on a 24-hour basis.

(3) Review with sufficient frequency all security-related functions to ensure that all are effective and in compliance with this part, its security program, and applicable Security Directives.

(4) Immediately initiate corrective action for any instance of non-compliance with this part, its security program, and applicable Security Directives.

(5) Review and control the results of employment history, verification, and criminal history records checks required under § 1542.209.

(6) Serve as the contact to receive notification from individuals applying for unescorted access of their intent to seek correction of their criminal history record with the FBI.

(c) After July 17, 2003, no airport operator may use, nor may it designate any person as, an ASC unless that individual has completed subject matter training, as specified in its security program, to prepare the individual to assume the duties of the position. The airport operator must maintain ASC training documentation until at least 180 days after the withdrawal of a individual's designation as an ASC.

(d) An individual's satisfactory completion of initial ASC training required under paragraph (c) of this section satisfies that requirement for all future ASC designations for that individual, except for site specific information, unless there has been a two or more year break in service as an active and designated ASC.

§ 1542.5

Inspection authority.

(a) Each airport operator must allow TSA, at any time or place, to make any inspections or tests, including copying records, to determine compliance of an airport operator, aircraft operator, foreign air carrier, indirect air carrier, or other airport tenants with—

(1) This subchapter and any security program under this subchapter, and part 1520 of this chapter; and

(2) 49 U.S.C. Subtitle VII, as amended.

(b) At the request of TSA, each airport operator must provide evidence of compliance with this part and its airport security program, including copies of records.

(c) TSA may enter and be present within secured areas, AOA's, and SIDA's without access media or identification media issued or approved by an airport operator or aircraft operator, in order to inspect or test compliance, or perform other such duties as TSA may direct.

(d) At the request of TSA and upon the completion of SIDA training as required in a security program, each airport operator promptly must issue to TSA personnel access and identification media to provide TSA personnel with unescorted access to, and movement within, secured areas, AOA's, and SIDA's.

Subpart B—Airport Security Program

§ 1542.101

General requirements.

(a) No person may operate an airport subject to this part unless it adopts and carries out a security program that—

(1) Provides for the safety and security of persons and property on an aircraft operating in air transportation or intrastate air transportation against an act of criminal violence, aircraft piracy, and the introduction of an unauthorized weapon, explosive, or incendiary onto an aircraft;

(2) Is in writing and is signed by the airport operator;

(3) Includes the applicable items listed in § 1542.103;

(4) Includes an index organized in the same subject area sequence as § 1542.103; and

(5) Has been approved by TSA.

(b) The airport operator must maintain one current and complete copy of its security program and provide a copy to TSA upon request.

(c) Each airport operator must—

(1) Restrict the distribution, disclosure, and availability of sensitive security information (SSI), as defined in part 1520 of this chapter, to persons with a need to know; and

(2) Refer all requests for SSI by other persons to TSA.

§ 1542.103

Content.

(a)

Complete program.

Except as otherwise approved by TSA, each airport operator regularly serving operations of an aircraft operator or foreign air carrier described in § 1544.101(a)(1) or § 1546.101(a) of this chapter, must include in its security program the following:

(1) The name, means of contact, duties, and training requirements of the ASC required under § 1542.3.

(2) [Reserved]

(3) A description of the secured areas, including—

(i) A description and map detailing boundaries and pertinent features;

(ii) Each activity or entity on, or adjacent to, a secured area that affects security;

(iii) Measures used to perform the access control functions required under § 1542.201(b)(1);

(iv) Procedures to control movement within the secured area, including identification media required under § 1542.201(b)(3); and

(v) A description of the notification signs required under § 1542.201(b)(6).

(4) A description of the AOA, including—

(i) A description and map detailing boundaries, and pertinent features;

(ii) Each activity or entity on, or adjacent to, an AOA that affects security;

(iii) Measures used to perform the access control functions required under § 1542.203(b)(1);

(iv) Measures to control movement within the AOA, including identification media as appropriate; and

(v) A description of the notification signs required under § 1542.203(b)(4).

(5) A description of the SIDA's, including—

(i) A description and map detailing boundaries and pertinent features; and

(ii) Each activity or entity on, or adjacent to, a SIDA.

(6) A description of the sterile areas, including—

(i) A diagram with dimensions detailing boundaries and pertinent features;

(ii) Access controls to be used when the passenger-screening checkpoint is non-operational and the entity responsible for that access control; and

(iii) Measures used to control access as specified in § 1542.207.

(7) Procedures used to comply with § 1542.209 regarding fingerprint-based criminal history records checks.

(8) A description of the personnel identification systems as described in § 1542.211.

(9) Escort procedures in accordance with § 1542.211(e).

(10) Challenge procedures in accordance with § 1542.211(d).

(11) Training programs required under §§ 1542.213 and 1542.217(c)(2), if applicable.

(12) A description of law enforcement support used to comply with § 1542.215(a).

(13) A system for maintaining the records described in § 1542.221.

(14) The procedures and a description of facilities and equipment used to support TSA inspection of individuals and property, and aircraft operator or foreign air carrier screening functions of parts 1544 and 1546 of this chapter.

(15) A contingency plan required under § 1542.301.

(16) Procedures for the distribution, storage, and disposal of security programs, Security Directives, Information Circulars, implementing instructions, and, as appropriate, classified information.

(17) Procedures for posting of public advisories as specified in § 1542.305.

(18) Incident management procedures used to comply with § 1542.307.

(19) Alternate security procedures, if any, that the airport operator intends to use in the event of natural disasters, and other emergency or unusual conditions.

(20) Each exclusive area agreement as specified in § 1542.111.

(21) Each airport tenant security program as specified in § 1542.113.

(b)

Supporting program.

Except as otherwise approved by TSA, each airport regularly serving operations of an aircraft operator or foreign air carrier described in § 1544.101(a)(2) or (f), or § 1546.101(b) or (c) of this chapter, must include in its security program a description of the following:

(1) Name, means of contact, duties, and training requirements of the ASC, as required under § 1542.3.

(2) A description of the law enforcement support used to comply with § 1542.215(a).

(3) Training program for law enforcement personnel required under § 1542.217(c)(2), if applicable.

(4) A system for maintaining the records described in § 1542.221.

(5) The contingency plan required under § 1542.301.

(6) Procedures for the distribution, storage, and disposal of security programs, Security Directives, Information Circulars, implementing instructions, and, as appropriate, classified information.

(7) Procedures for public advisories as specified in § 1542.305.

(8) Incident management procedures used to comply with § 1542.307.

(c)

Partial program.

Except as otherwise approved by TSA, each airport regularly serving operations of an aircraft operator or foreign air carrier described in § 1544.101(b) or § 1546.101(d) of this chapter, must include in its security program a description of the following:

(1) Name, means of contact, duties, and training requirements of the ASC as required under § 1542.3.

(2) A description of the law enforcement support used to comply with § 1542.215(b).

(3) Training program for law enforcement personnel required under § 1542.217(c)(2), if applicable.

(4) A system for maintaining the records described in § 1542.221.

(5) Procedures for the distribution, storage, and disposal of security programs, Security Directives, Information Circulars, implementing instructions, and, as appropriate, classified information.

(6) Procedures for public advisories as specified in § 1542.305.

(7) Incident management procedures used to comply with § 1542.307.

(d)

Use of appendices.

The airport operator may comply with paragraphs (a), (b), and (c) of this section by including in its security program, as an appendix, any document that contains the information required by paragraphs (a), (b), and (c) of this section. The appendix must be referenced in the corresponding section(s) of the security program.

§ 1542.105

Approval and amendments.

(a)

Initial approval of security program.

Unless otherwise authorized by the designated official, each airport operator required to have a security program under this part must submit its initial proposed security program to the designated official for approval at least 90 days before the date any aircraft operator or foreign air carrier required to have a security program under part 1544 or part 1546 of this chapter is expected to begin operations. Such requests will be processed as follows:

(1) The designated official, within 30 days after receiving the proposed security program, will either approve the program or give the airport operator written notice to modify the program to comply with the applicable requirements of this part.

(2) The airport operator may either submit a modified security program to the designated official for approval, or petition the Under Secretary to reconsider the notice to modify within 30 days of receiving a notice to modify. A petition for reconsideration must be filed with the designated official.

(3) The designated official, upon receipt of a petition for reconsideration, either amends or withdraws the notice, or transmits the petition, together with any pertinent information, to the Under Secretary for reconsideration. The Under Secretary disposes of the petition within 30 days of receipt by either directing the designated official to withdraw or amend the notice to modify, or by affirming the notice to modify.

(b)

Amendment requested by an airport operator.

Except as provided in § 1542.103(c), an airport operator may submit a request to the designated official to amend its security program, as follows:

(1) The request for an amendment must be filed with the designated official at least 45 days before the date it proposes for the amendment to become effective, unless a shorter period is allowed by the designated official.

(2) Within 30 days after receiving a proposed amendment, the designated official, in writing, either approves or denies the request to amend.

(3) An amendment to a security program may be approved if the designated official determines that safety and the public interest will allow it, and the proposed amendment provides the level of security required under this part.

(4) Within 30 days after receiving a denial, the airport operator may petition the Under Secretary to reconsider the denial.

(5) Upon receipt of a petition for reconsideration, the designated official either approves the request to amend or transmits the petition within 30 days of receipt, together with any pertinent information, to the Under Secretary for reconsideration. The Under Secretary disposes of the petition within 30 days of receipt by either directing the designated official to approve the amendment or affirming the denial.

(c)

Amendment by TSA.

If safety and the public interest require an amendment, the designated official may amend a security program as follows:

(1) The designated official sends to the airport operator a notice, in writing, of the proposed amendment, fixing a period of not less than 30 days within which the airport operator may submit written information, views, and arguments on the amendment.

(2) After considering all relevant material, the designated official notifies the airport operator of any amendment adopted or rescinds the notice. If the amendment is adopted, it becomes effective not less than 30 days after the airport operator receives the notice of amendment, unless the airport operator petitions the Under Secretary to reconsider no later than 15 days before the effective date of the amendment. The airport operator must send the petition for reconsideration to the designated official. A timely petition for reconsideration stays the effective date of the amendment.

(3) Upon receipt of a petition for reconsideration, the designated official either amends or withdraws the notice, or transmits the petition, together with any pertinent information to the Under Secretary for reconsideration. The Under Secretary disposes of the petition within 30 days of receipt by either directing the designated official to withdraw or amend the amendment, or by affirming the amendment.

(d)

Emergency amendments.

Notwithstanding paragraph (c) of this section, if the designated official finds that there is an emergency requiring immediate action with respect to safety and security in air transportation or in air commerce that makes procedures in this section contrary to the public interest, the designated official may issue an amendment, effective without stay on the date the airport operator receives the notice of it. In such a case, the designated official must incorporate in the notice a brief statement of the reasons and findings for the amendment to be adopted. The airport operator may file a petition for reconsideration under paragraph (c) of this section; however, this does not stay the effective date of the emergency amendment.

§ 1542.107

Changed conditions affecting security.

(a) After approval of the security program, each airport operator must notify TSA when changes have occurred to the—

(1) Measures, training, area descriptions, or staffing, described in the security program;

(2) Operations of an aircraft operator or foreign air carrier that would require modifications to the security program as required under § 1542.103; or

(3) Layout or physical structure of any area under the control of the airport operator, airport tenant, aircraft operator, or foreign air carrier used to support the screening process, access, presence, or movement control functions required under part 1542, 1544, or 1546 of this chapter.

(b) Each airport operator must notify TSA no more than 6 hours after the discovery of any changed condition described in paragraph (a) of this section, or within the time specified in its security program, of the discovery of any changed condition described in paragraph (a) of this section. The airport operator must inform TSA of each interim measure being taken to maintain adequate security until an appropriate amendment to the security program is approved. Each interim measure must be acceptable to TSA.

(c) For changed conditions expected to be less than 60 days duration, each airport operator must forward the information required in paragraph (b) of this section in writing to TSA within 72 hours of the original notification of the change condition(s). TSA will notify the airport operator of the disposition of the notification in writing. If approved by TSA, this written notification becomes a part of the airport security program for the duration of the changed condition(s).

(d) For changed conditions expected to be 60 days or more duration, each airport operator must forward the information required in paragraph (b) of this section in the form of a proposed amendment to the airport operator's security program, as required under § 1542.105. The request for an amendment must be made within 30 days of the discovery of the changed condition(s). TSA will respond to the request in accordance with § 1542.105.

§ 1542.109

Alternate means of compliance.

If in TSA's judgment, the overall safety and security of the airport, and aircraft operator or foreign air carrier operations are not diminished, TSA may approve a security program that provides for the use of alternate measures. Such a program may be considered only for an operator of an airport at which service by aircraft operators or foreign air carriers under part 1544 or 1546 of this chapter is determined by TSA to be seasonal or infrequent.

§ 1542.111

Exclusive area agreements.

(a) TSA may approve an amendment to an airport security program under which an aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter assumes responsibility for specified security measures for all or portions of the secured area, AOA, or SIDA, including access points, as provided in § 1542.201, § 1542.203, or § 1542.205. The assumption of responsibility must be exclusive to one aircraft operator or foreign air carrier, and shared responsibility among aircraft operators or foreign air carriers is not permitted for an exclusive area.

(b) An exclusive area agreement must be in writing, signed by the airport operator and aircraft operator or foreign air carrier, and maintained in the airport

security program. This agreement must contain the following:

(1) A description, a map, and, where appropriate, a diagram of the boundaries and pertinent features of each area, including individual access points, over which the aircraft operator or foreign air carrier will exercise exclusive security responsibility.

(2) A description of the measures used by the aircraft operator or foreign air carrier to comply with § 1542.201, § 1542.203, or § 1542.205, as appropriate.

(3) Procedures by which the aircraft operator or foreign air carrier will immediately notify the airport operator and provide for alternative security measures when there are changed conditions as described in § 1542.103(a).

(c) Any exclusive area agreements in effect on November 14, 2001, must meet the requirements of this section and § 1544.227 no later than November 14, 2002.

§ 1542.113

Airport tenant security programs.

(a) TSA may approve an airport tenant security program as follows:

(1) The tenant must assume responsibility for specified security measures of the secured area, AOA, or SIDA as provided in §§ 1542.201, 1542.203, and 1542.205.

(2) The tenant may not assume responsibility for law enforcement support under § 1542.215.

(3) The tenant must assume the responsibility within the tenant's leased areas or areas designated for the tenant's exclusive use. A tenant may not assume responsibility under a tenant security program for the airport passenger terminal.

(4) Responsibility must be exclusive to one tenant, and shared responsibility among tenants is not permitted.

(5) TSA must find that the tenant is able and willing to carry out the airport tenant security program.

(b) An airport tenant security program must be in writing, signed by the airport operator and the airport tenant, and maintained in the airport security program. The airport tenant security program must include the following:

(1) A description and a map of the boundaries and pertinent features of each area over which the airport tenant will exercise security responsibilities.

(2) A description of the measures the airport tenant has assumed.

(3) Measures by which the airport operator will monitor and audit the tenant's compliance with the security program.

(4) Monetary and other penalties to which the tenant may be subject if it fails to carry out the airport tenant security program.

(5) Circumstances under which the airport operator will terminate the airport tenant security program for cause.

(6) A provision acknowledging that the tenant is subject to inspection by TSA in accordance with § 1542.5.

(7) A provision acknowledging that individuals who carry out the tenant security program are contracted to or acting for the airport operator and are required to protect sensitive information in accordance with part 1520 of this chapter, and may be subject to civil penalties for failing to protect sensitive security information.

(8) Procedures by which the tenant will immediately notify the airport operator of and provide for alternative security measures for changed conditions as described in § 1542.103(a).

(c) If TSA has approved an airport tenant security program, the airport operator may not be found to be in violation of a requirement of this part in any case in which the airport operator demonstrates that:

(1) The tenant or an employee, permittee, or invitee of the tenant, is responsible for such violation; and

(2) The airport operator has complied with all measures in its security program to ensure the tenant has complied with the airport tenant security program.

(d) TSA may amend or terminate an airport tenant security program in accordance with § 1542.105.

Subpart C—Operations

§ 1542.201

Security of the secured area.

(a) Each airport operator required to have a security program under § 1542.103(a) must establish at least one secured area.

(b) Each airport operator required to establish a secured area must prevent and detect the unauthorized entry, presence, and movement of individuals and ground vehicles into and within the secured area by doing the following:

(1) Establish and carry out measures for controlling entry to secured areas of the airport in accordance with § 1542.207.

(2) Provide for detection of, and response to, each unauthorized presence or movement in, or attempted entry to, the secured area by an individual whose access is not authorized in accordance with its security program.

(3) Establish and carry out a personnel identification system described under § 1542.211.

(4) Subject each individual to employment history verification as described in § 1542.209 before authorizing unescorted access to a secured area.

(5) Train each individual before granting unescorted access to the secured area, as required in § 1542.213(b).

(6) Post signs at secured area access points and on the perimeter that provide warning of the prohibition against unauthorized entry. Signs must be posted by each airport operator in accordance with its security program not later than November 14, 2003.

§ 1542.203

Security of the air operations area (AOA).

(a) Each airport operator required to have a security program under § 1542.103(a) must establish an AOA, unless the entire area is designated as a secured area.

(b) Each airport operator required to establish an AOA must prevent and detect the unauthorized entry, presence, and movement of individuals and ground vehicles into or within the AOA by doing the following:

(1) Establish and carry out measures for controlling entry to the AOA of the airport in accordance with § 1542.207.

(2) Provide for detection of, and response to, each unauthorized presence or movement in, or attempted entry to, the AOA by an individual whose access is not authorized in accordance with its security program.

(3) Provide security information as described in § 1542.213(c) to each individual with unescorted access to the AOA.

(4) Post signs on AOA access points and perimeters that provide warning of the prohibition against unauthorized entry to the AOA. Signs must be posted by each airport operator in accordance with its security program not later than November 14, 2003.

(5) If approved by TSA, the airport operator may designate all or portions of its AOA as a SIDA, or may use another personnel identification system, as part of its means of meeting the requirements of this section. If it uses another personnel identification system, the media must be clearly distinguishable from those used in the secured area and SIDA.

§ 1542.205

Security of the security identification display area (SIDA).

(a) Each airport operator required to have a security program under § 1542.103(a) must establish at least one SIDA. Each secured area must be a SIDA. Other areas of the airport may be SIDA's.

(b) Each airport operator required to establish a SIDA must establish and

carry out measures to prevent the unauthorized presence and movement of individuals in the SIDA and must do the following:

(1) Establish and carry out a personnel identification system described under § 1542.211.

(2) Subject each individual to employment history verification as described in § 1542.209 before authorizing unescorted access to a SIDA.

(3) Train each individual before granting unescorted access to the SIDA, as required in § 1542.213(b).

§ 1542.207

Access control systems.

(a)

Secured area.

Except as provided in paragraph (b) of this section, the measures for controlling entry to the secured area required under § 1542.201(b)(1) must—

(1) Ensure that only those individuals authorized to have unescorted access to the secured area are able to gain entry;

(2) Ensure that an individual is immediately denied entry to a secured area when that person's access authority for that area is withdrawn; and

(3) Provide a means to differentiate between individuals authorized to have access to an entire secured area and individuals authorized access to only a particular portion of a secured area.

(b)

Alternative systems.

TSA may approve an amendment to a security program that provides alternative measures that provide an overall level of security equal to that which would be provided by the measures described in paragraph (a) of this section.

(c)

Air operations area.

The measures for controlling entry to the AOA required under § 1542.203(b)(1) must incorporate accountability procedures to maintain their integrity.

(d)

Secondary access media.

An airport operator may issue a second access medium to an individual who has unescorted access to secured areas or the AOA, but is temporarily not in possession of the original access medium, if the airport operator follows measures and procedures in the security program that—

(1) Verifies the authorization of the individual to have unescorted access to secured areas or AOAs;

(2) Restricts the time period of entry with the second access medium;

(3) Retrieves the second access medium when expired;

(4) Deactivates or invalidates the original access medium until the individual returns the second access medium; and

(5) Provides that any second access media that is also used as identification media meet the criteria of § 1542.211(b).

§ 1542.209

Fingerprint-based criminal history records checks (CHRC).

(a)

Scope.

The following persons are within the scope of this section—

(1) Each airport operator and airport user.

(2) Each individual currently having unescorted access to a SIDA, and each individual with authority to authorize others to have unescorted access to a SIDA (referred to as unescorted access authority).

(3) Each individual seeking unescorted access authority.

(4) Each airport user and aircraft operator making a certification to an airport operator pursuant to paragraph (n) of this section, or 14 CFR 108.31(n) in effect prior to November 14, 2001 (see 14 CFR Parts 60 to 139 revised as of January 1, 2001). An airport user, for the purposes of this section only, is any person other than an aircraft operator subject to § 1544.229 of this chapter making a certification under this section.

(b)

Individuals seeking unescorted access authority.

Except as provided in paragraph (m) of this section, each airport operator must ensure that no individual is granted unescorted access authority unless the individual has undergone a fingerprint-based CHRC that does not disclose that he or she has a disqualifying criminal offense, as described in paragraph (d) of this section.

(c)

Individuals who have not had a CHRC.

(1) Except as provided in paragraph (m) of this section, each airport operator must ensure that after December 6, 2002, no individual retains unescorted access authority, unless the airport operator has obtained and submitted a fingerprint under this part.

(2) When a CHRC discloses a disqualifying criminal offense for which the conviction or finding of not guilty by reason of insanity was on or after December 6, 1991, the airport operator must immediately suspend that individual's authority.

(d)

Disqualifying criminal offenses.

An individual has a disqualifying criminal offense if the individual has been convicted, or found not guilty of by reason of insanity, of any of the disqualifying crimes listed in this paragraph (d) in any jurisdiction during the 10 years before the date of the individual's application for unescorted access authority, or while the individual has unescorted access authority. The disqualifying criminal offenses are as follows—

(1) Forgery of certificates, false marking of aircraft, and other aircraft registration violation; 49 U.S.C. 46306.

(2) Interference with air navigation; 49 U.S.C. 46308.

(3) Improper transportation of a hazardous material; 49 U.S.C. 46312.

(4) Aircraft piracy; 49 U.S.C. 46502.

(5) Interference with flight crew members or flight attendants; 49 U.S.C. 46504.

(6) Commission of certain crimes aboard aircraft in flight; 49 U.S.C. 46506.

(7) Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 46505.

(8) Conveying false information and threats; 49 U.S.C. 46507.

(9) Aircraft piracy outside the special aircraft jurisdiction of the United States; 49 U.S.C. 46502(b).

(10) Lighting violations involving transporting controlled substances; 49 U.S.C. 46315.

(11) 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.

(12) Destruction of an aircraft or aircraft facility; 18 U.S.C. 32.

(13) Murder.

(14) Assault with intent to murder.

(15) Espionage.

(16) Sedition.

(17) Kidnapping or hostage taking.

(18) Treason.

(19) Rape or aggravated sexual abuse.

(20) Unlawful possession, use, sale, distribution, or manufacture of an explosive or weapon.

(21) Extortion.

(22) Armed or felony unarmed robbery.

(23) Distribution of, or intent to distribute, a controlled substance.

(24) Felony arson.

(25) Felony involving a threat.

(26) Felony involving—

(i) Willful destruction of property;

(ii) Importation or manufacture of a controlled substance;

(iii) Burglary;

(iv) Theft;

(v) Dishonesty, fraud, or misrepresentation;

(vi) Possession or distribution of stolen property;

(vii) Aggravated assault;

(viii) Bribery; or

(ix) Illegal possession of a controlled substance punishable by a maximum term of imprisonment of more than 1 year.

(27) Violence at international airports; 18 U.S.C. 37.

(28) Conspiracy or attempt to commit any of the criminal acts listed in this paragraph (d).

(e)

Fingerprint application and processing.

(1) At the time of fingerprinting, the airport operator must

provide the individual to be fingerprinted a fingerprint application that includes only the following—

(i) The disqualifying criminal offenses described in paragraph (d) of this section.

(ii) A statement that the individual signing the application does not have a disqualifying criminal offense.

(iii) A statement informing the individual that Federal regulations under 49 CFR 1542.209 (l) impose a continuing obligation to disclose to the airport operator within 24 hours if he or she is convicted of any disqualifying criminal offense that occurs while he or she has unescorted access authority. After February 17, 2002, the airport operator may use statements that have already been printed referring to 14 CFR 107.209 until stocks of such statements are used up.

(iv) A statement reading, “The information I have provided on this application is true, complete, and correct to the best of my knowledge and belief and is provided in good faith. I understand that a knowing and willful false statement on this application can be punished by fine or imprisonment or both. (See section 1001 of Title 18 United States Code.)''

(v) A line for the printed name of the individual.

(vi) A line for the individual's signature and date of signature.

(2) Each individual must complete and sign the application prior to submitting his or her fingerprints.

(3) The airport operator must verify the identity of the individual through two forms of identification prior to fingerprinting, and ensure that the printed name on the fingerprint application is legible. At least one of the two forms of identification must have been issued by a government authority, and at least one must include a photo.

(4) The airport operator must advise the individual that:

(i) A copy of the criminal record received from the FBI will be provided to the individual, if requested by the individual in writing; and

(ii) The ASC is the individual's point of contact if he or she has questions about the results of the CHRC.

(5) The airport operator must collect, control, and process one set of legible and classifiable fingerprints under direct observation of the airport operator or a law enforcement officer.

(6) Fingerprints may be obtained and processed electronically, or recorded on fingerprint cards approved by the FBI and distributed by TSA for that purpose.

(7) The fingerprint submission must be forwarded to TSA in the manner specified by TSA.

(f)

Fingerprinting fees.

Airport operators must pay for all fingerprints in a form and manner approved by TSA. The payment must be made at the designated rate (available from the local TSA security office) for each set of fingerprints submitted. Information about payment options is available though the designated TSA headquarters point of contact. Individual personal checks are not acceptable.

(g)

Determination of arrest status.

(1) When a CHRC on an individual seeking unescorted access authority discloses an arrest for any disqualifying criminal offense listed in paragraph (d) of this section without indicating a disposition, the airport operator must determine, after investigation, that the arrest did not result in a disqualifying offense before granting that authority. 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 paragraph (d) of this section, the individual is not disqualified under this section.

(2) When a CHRC on an individual with unescorted access authority discloses an arrest for any disqualifying criminal offense without indicating a disposition, the airport operator must suspend the individual's unescorted access authority not later than 45 days after obtaining the CHRC unless the airport 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 paragraph (d) of this section, the individual is not disqualified under this section.

(3) The airport operator may only make the determinations required in paragraphs (g)(1) and (g)(2) of this section for individuals for whom it is issuing, or has issued, unescorted access authority, and who are not covered by a certification from an aircraft operator under paragraph (n) of this section. The airport operator may not make determinations for individuals described in § 1544.229 of this chapter.

(h)

Correction of FBI records and notification of disqualification.

(1) Before making a final decision to deny unescorted access authority to an individual described in paragraph (b) of this section, the airport operator must advise him or her that the FBI criminal record discloses information that would disqualify him or her from receiving or retaining unescorted access authority and provide the individual with a copy of the FBI record if he or she requests it.

(2) The airport operator must notify an individual that a final decision has been made to grant or deny unescorted access authority.

(3) Immediately following the suspension of unescorted access authority of an individual, the airport operator must advise him or her that the FBI criminal record discloses information that disqualifies him or her from retaining unescorted access authority and provide the individual with a copy of the FBI record if he or she requests it.

(i)

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) For an individual seeking unescorted access authority on or after December 6, 2001, the following applies:

(i) Within 30 days after being advised that the criminal record received from the FBI discloses a disqualifying criminal offense, the individual must notify the airport operator in writing of his or her intent to correct any information he or she believes to be inaccurate. The airport 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 granting unescorted access authority.

(ii) If no notification, as described in paragraph (h)(1) of this section, is received within 30 days, the airport operator may make a final determination to deny unescorted access authority.

(2) For an individual with unescorted access authority before December 6, 2001, the following applies: Within 30 days after being advised of suspension because the criminal record received from the FBI discloses a disqualifying criminal offense, the individual must notify the airport operator in writing of his or her intent to correct any information he or she believes to be inaccurate. The airport 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 reinstating unescorted access authority.

(j)

Limits on dissemination of results.

Criminal record information provided by the FBI may be used only to carry out this section and § 1544.229 of this chapter. 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) Officials of other airport operators who are determining whether to grant unescorted access to the individual under this part.

(3) Aircraft operators who are determining whether to grant unescorted access to the individual or authorize the individual to perform screening functions under part 1544 of this chapter.

(4) Others designated by TSA.

(k)

Recordkeeping.

The airport operator must maintain the following information:

(1)

Investigations conducted before December 6, 2001.

The airport operator must maintain and control the access or employment history investigation files, including the criminal history records results portion, or the appropriate certifications, for investigations conducted before December 6, 2001.

(2)

Fingerprint application process on or after December 6, 2001.

Except when the airport operator has received a certification under paragraph (n) of this section, the airport operator must physically maintain, control, and, as appropriate, destroy the fingerprint application and the criminal record. Only direct airport operator employees may carry out the responsibility for maintaining, controlling, and destroying criminal records.

(3)

Certification on or after December 6, 2001.

The airport operator must maintain the certifications provided under paragraph (n) of this section.

(4)

Protection of records—all investigations.

The records required by this section must be maintained in a manner that is acceptable to TSA and in a manner that protects the confidentiality of the individual.

(5)

Duration—all investigations.

The records identified in this section with regard to an individual must be maintained until 180 days after the termination of the individual's unescorted access authority. When files are no longer maintained, the criminal record must be destroyed.

(l)

Continuing responsibilities.

(1) Each individual with unescorted access authority on December 6, 2001, who had a disqualifying criminal offense in paragraph (d) of this section on or after December 6, 1991, must, by January 7, 2002, report the conviction to the airport operator and surrender the SIDA access medium to the issuer.

(2) Each individual with unescorted access authority who has a disqualifying criminal offense must report the offense to the airport operator and surrender the SIDA access medium to the issuer within 24 hours of the conviction or the finding of not guilty by reason of insanity.

(3) If information becomes available to the airport operator or the airport user indicating that an individual with unescorted access authority has a disqualifying criminal offense, the airport operator must determine the status of the conviction. If a disqualifying offense is confirmed the airport operator must immediately revoke any unescorted access authority.

(m)

Exceptions.

Notwithstanding the requirements of this section, an airport operator must authorize the following individuals to have unescorted access authority:

(1) An employee of the Federal, state, or local government (including a law enforcement officer) who, as a condition of employment, has been subjected to an employment investigation that includes a criminal records check.

(2) Notwithstanding the requirements of this section, an airport operator may authorize the following individuals to have unescorted access authority:

(i) An individual who has been continuously employed in a position requiring unescorted access authority by another airport operator, airport user, or aircraft operator, or contractor to such an entity, provided the grant for his or her unescorted access authority was based upon a fingerprint-based CHRC through TSA or FAA.

(ii) An individual who has been continuously employed by an aircraft operator or aircraft operator contractor, in a position with authority to perform screening functions, provided the grant for his or her authority to perform screening functions was based upon a fingerprint-based CHRC through TSA or FAA.

(n)

Certifications by aircraft operators.

An airport operator is in compliance with its obligation under paragraph (b) or (c) of this section when the airport operator accepts, for each individual seeking unescorted access authority, certification from an aircraft operator subject to part 1544 of this chapter indicating it has complied with § 1544.229 of this chapter for the aircraft operator's employees and contractors seeking unescorted access authority. If the airport operator accepts a certification from the aircraft operator, the airport operator may not require the aircraft operator to provide a copy of the CHRC.

(o)

Airport operator responsibility.

The airport operator must—

(1) Designate the ASC, in the security program, or a direct employee if the ASC is not a direct employee, to be responsible for maintaining, controlling, and destroying the criminal record files when their maintenance is no longer required by paragraph (k) of this section.

(2) Designate the ASC, in the security program, to serve as the contact to receive notification from individuals applying for unescorted access authority of their intent to seek correction of their FBI criminal record.

(3) Audit the employment history investigations performed by the airport operator in accordance with this section and 14 CFR 107.31 in effect prior to November 14, 2001 (see 14 CFR Parts 60 through 139 revised as of January 1, 2001), and those investigations conducted by the airport users who provided certification to the airport operator. The audit program must be set forth in the airport security program.

(p)

Airport user responsibility.

(1) The airport user must report to the airport operator information, as it becomes available, that indicates an individual with unescorted access authority may have a disqualifying criminal offense.

(2) The airport user must maintain and control, in compliance with paragraph (k) of this section, the employment history investigation files for investigations conducted before December 6, 2001, unless the airport operator decides to maintain and control the employment history investigation file.

(3) The airport user must provide the airport operator with either the name or title of the individual acting as custodian of the files described in this paragraph (p), the address of the location where the files are maintained, and the phone number of that location. The airport user must provide the airport operator and TSA with access to these files.

§ 1542.211

Identification systems.

(a)

Personnel identification system.

The personnel identification system under §§ 1542.201(b)(3) and 1542.205(b)(1) must include the following:

(1) Personnel identification media that—

(i) Convey a full-face image, full name, employer, and identification number of the individual to whom the identification medium is issued;

(ii) Indicate clearly the scope of the individual's access and movement privileges;

(iii) Indicate clearly an expiration date; and

(iv) Are of sufficient size and appearance as to be readily observable for challenge purposes.

(2) Procedures to ensure that each individual in the secured area or SIDA continuously displays the identification

medium issued to that individual on the outermost garment above waist level, or is under escort.

(3) Procedures to ensure accountability through the following:

(i) Retrieving expired identification media and media of persons who no longer have unescorted access authority.

(ii) Reporting lost or stolen identification media.

(iii) Securing unissued identification media stock and supplies.

(iv) Auditing the system at a minimum of once a year or sooner, as necessary, to ensure the integrity and accountability of all identification media.

(v) As specified in the security program, revalidate the identification system or reissue identification media if a portion of all issued, unexpired identification media are lost, stolen, or otherwise unaccounted for, including identification media that are combined with access media.

(vi) Ensure that only one identification medium is issued to an individual at a time, except for personnel who are employed with more than one company and require additional identification media to carry out employment duties. A replacement identification medium may only be issued if an individual declares in writing that the medium has been lost, stolen, or destroyed.

(b)

Temporary identification media.

Each airport operator may issue personnel identification media in accordance with its security program to persons whose duties are expected to be temporary. The temporary identification media system must include procedures and methods to—

(1) Retrieve temporary identification media;

(2) Authorize the use of a temporary media for a limited time only;

(3) Ensure that temporary media are distinct from other identification media and clearly display an expiration date; and

(4) Ensure that any identification media also being used as an access media meet the criteria of § 1542.207(d).

(c)

Airport-approved identification media.

TSA may approve an amendment to the airport security program that provides for the use of identification media meeting the criteria of this section that are issued by entities other than the airport operator, as described in the security program.

(d)

Challenge program.

Each airport operator must establish and carry out a challenge program that requires each individual who has authorized unescorted access to secured areas and SIDA's to ascertain the authority of any individual who is not displaying an identification medium authorizing the individual to be present in the area. The challenge program must include procedures to challenge individuals not displaying airport approved identification media. The procedure must—

(1) Apply uniformly in secured areas, SIDAs, and exclusive areas;

(2) Describe how to challenge an individual directly or report any individual not visibly displaying an authorized identification medium, including procedures to notify the appropriate authority; and

(3) Describe support of challenge procedures, including law enforcement and any other responses to reports of individuals not displaying authorized identification media.

(e)

Escorting.

Each airport operator must establish and implement procedures for escorting individuals who do not have unescorted access authority to a secured area or SIDA that—

(1) Ensure that only individuals with unescorted access authority are permitted to escort;

(2) Ensure that the escorted individuals are continuously accompanied or monitored while within the secured area or SIDA in a manner sufficient to identify whether the escorted individual is engaged in activities other than those for which escorted access was granted, and to take action in accordance with the airport security program;

(3) Identify what action is to be taken by the escort, or other authorized individual, should individuals under escort engage in activities other than those for which access was granted;

(4) Prescribe law enforcement support for escort procedures; and

(5) Ensure that individuals escorted into a sterile area without being screened under § 1544.201 of this chapter remain under escort until they exit the sterile area, or submit to screening pursuant to § 1544.201 or § 1546.201 of this chapter.

(f)

Effective date.

The identification systems described in this section must be implemented by each airport operator not later than November 14, 2003.

§ 1542.213

Training.

(a) Each airport operator must ensure that individuals performing security-related functions for the airport operator are briefed on the provisions of this part, Security Directives, and Information Circulars, and the security program, to the extent that such individuals need to know in order to perform their duties.

(b) An airport operator may not authorize any individual unescorted access to the secured area or SIDA, except as provided in § 1542.5, unless that individual has successfully completed training in accordance with TSA-approved curriculum specified in the security program. This curriculum must detail the methods of instruction, provide attendees with an opportunity to ask questions, and include at least the following topics—

(1) The unescorted access authority of the individual to enter and be present in various areas of the airport;

(2) Control, use, and display of airport-approved access and identification media;

(3) Escort and challenge procedures and the law enforcement support for these procedures;

(4) Security responsibilities as specified in § 1540.105;

(5) Restrictions on divulging sensitive security information as described in part 1520 of this chapter; and

(6) Any other topics specified in the security program.

(c) An airport operator may not authorize any individual unescorted access to the AOA, except as provided in § 1542.5, unless that individual has been provided information in accordance with the security program, including—

(1) The unescorted access authority of the individual to enter and be present in various areas of the airport;

(2) Control, use, and display of airport-approved access and identification media, if appropriate;

(3) Escort and challenge procedures and the law enforcement support for these procedures, where applicable;

(4) Security responsibilities as specified in § 1540.105;

(5) Restrictions on divulging sensitive security information as described in part 1520 of this chapter; and

(6) Any other topics specified in the security program.

(d) Each airport operator must maintain a record of all training and information given to each individual under paragraphs (b) and (c) of this section for 180 days after the termination of that person's unescorted access authority.

(e) As to persons with unescorted access to the SIDA on November 14, 2001, training on responsibility under § 1540.105 can be provided by making relevant security information available.

(f) Training described in paragraph (c) of this section must be implemented by each airport operator not later than November 14, 2002.

§ 1542.215

Law enforcement support.

(a) In accordance with § 1542.217, each airport operator required to have a security program under § 1542.103(a) or (b) must provide:

(1) Law enforcement personnel in the number and manner adequate to support its security program.

(2) Uniformed law enforcement personnel in the number and manner adequate to support each system for screening persons and accessible property required under part 1544 or 1546 of this chapter, except to the extent that TSA provides Federal law enforcement support for the system.

(b) Each airport required to have a security program under § 1542.103(c) must ensure that:

(1) Law enforcement personnel are available and committed to respond to an incident in support of a civil aviation security program when requested by an aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter.

(2) The procedures by which to request law enforcement support are provided to each aircraft operator or foreign air carrier that has a security program under part 1544 or 1546 of this chapter.

§ 154

This text is long and has been trimmed here. Open the source document for the complete record.