Unescorted Access Privilege

SUMMARY: The FAA is issuing final regulations requiring airport

operators and air carriers to conduct an employment investigation and

disqualify individuals convicted of certain enumerated crimes from

having, or being able to authorize others to have, unescorted access

privileges to a security identification display area (SIDA) of a U.S.

airport. This rule implements the employment investigation provisions

of Section 105 of the Aviation Security Improvement Act of 1990. The

rule will enhance the effectiveness of the U.S. civil aviation security

system by ensuring that individuals applying for unescorted access

privileges do not constitute an unreasonable risk to the security of

the aviation system.

EFFECTIVE DATE: January 31, 1996.

FOR FURTHER INFORMATION CONTACT:

Robert Cammorroto (202-267-7723) or Linda Valencia (202-267-8222),

Office of Civil Aviation Security Policy and Planning, Policy and

Standards Division, (ACP-100), Federal Aviation Administration, 800

Independence Avenue, SW., Washington, DC 20591.

SUPPLEMENTARY INFORMATION:

Availability of Document

Any person may obtain a copy of this document by submitting a

request to the Federal Aviation Administration, Office of Public

Affairs, Attention: Public Inquiry Center, APA-230, 800 Independence

Avenue, SW., Washington, DC 20591, or by calling (202) 267-3484.

Communications must identify the amendment number or docket number.

Persons interested in being placed on a mailing list for future rules

should also request a copy of Advisory Circular No. 11-2A, which

describes the application procedures.

Background

Throughout the last decade, the FAA has recognized the need to

investigate the backgrounds of individuals authorized to have

unescorted access to security-restricted areas at U.S. airports. On

November 26, 1985, the FAA amended airport and air carrier security

programs to require 5-year background checks for individuals applying

for unescorted access authority to the security controlled areas of an

airport. The check requires the verification of such individual's

employment history and references for the previous 5 years to the

extent allowable by law.

The December 21, 1988, destruction of Pan American World Airways

Flight 103 by a terrorist bomb while in flight over Lockerbie,

Scotland, was the worst disaster of its kind in U.S. civil aviation

history. In response to this tragedy, on August 4, 1989, President Bush

established the President's Commission on Aviation Security and

Terrorism (Commission) (E.O. 12686) to assess the overall effectiveness

of the U.S. civil aviation security system.

The Commission's May 15, 1990, report presented a series of

recommendations intended to improve the U.S. civil aviation security

system. The Commission recommended that Congress enact legislation

requiring a criminal history records check for airport employees. The

Commission further recommended that the legislation identify certain

crimes that indicate a potential security risk, and enable airport

operators to deny employment in positions requiring access to security

sensitive areas on that basis. The Commission's recommendations formed

the basis of the Aviation Security Improvement Act of 1990, Pub. L.

101-604 (the Act).

Section 105(a) of the Aviation Security Improvement Act (the Act)

now codified as 49 U.S.C. 44936, added a new provision to the statute.

This provision directs the FAA Administrator to promulgate regulations

that subject individuals with unescorted access to U.S. or foreign air

carrier aircraft, or to secured areas of U.S. airports serving air

carriers, to such employment investigations, including a criminal

history records check, as the Administrator determines necessary to

ensure air transportation security.

In March 1991, the aviation industry provided suggestions for

implementing Section 105 of the Act through the Aviation Security

Advisory Committee (ASAC). These recommendations assisted the FAA in

developing its initial notice of proposed rulemaking (NPRM) published

in the Federal Register on February 13, 1992 (Notice No. 92-3; 57 FR

5352). In that notice the FAA proposed to require a criminal history

records check, using the Federal Bureau of Investigation's (FBI)

fingerprint-based national criminal history record filing system, for

all individuals (including current employees) with SIDA unescorted

access privileges. In that proposal, the FAA used the broad authority

delegated to the FAA Administrator in the Act to require an employment

investigation, including a criminal history records check.

On March 12, 1992, responding to requests from airport operators

and air carriers, the FAA extended the comment period for that proposal

from March 16 until May 15, 1992 (Notice No. 92-3A; 57 FR 8834), and

announced a series of public meetings. The FAA published the notice

outlining the details of the public meetings on April 9, 1992 (Notice

No. 92-3B; 57 FR 12396). Public meetings were held in Los Angeles,

California on April 28; Ft. Worth, Texas on April 30; and Washington,

D.C. on May 12, 1992. The FAA received over 270 written comments to the

docket and 66 commenters made oral presentations at the public

meetings.

The overwhelming majority of commenters opposed FAA's proposal to

require a criminal history records check for all individuals having

unescorted access to the SIDA, and the proposal to require escorts for

anyone inside the SIDA who did not have such a records check.

Specifically, commenters argued that individuals with existing

unescorted access privileges should be excluded from the criminal

history records check requirement, and that the proposed escorting

requirements were neither practical nor cost-effective. Some commenters

questioned whether any benefit would result from requiring a criminal

history check. Because of these concerns, commenters strongly

recommended that the FAA exercise more flexibility in implementing the

employment investigation provision of the Act.

Discussion of the SNPRM

In response to comments received during the public meetings and the

FAA's re-evaluation of the NPRM, the FAA issued a supplemental notice

of proposed rulemaking (SNPRM) (Notice No. 92-3C; 57 FR 43294) on

September 18, 1992. The SNPRM focused more broadly on the employment

investigation process for individuals applying for unescorted access

privilege. The SNPRM proposed an expanded employment application form,

an enhanced 5-year employment history verification and, only where

appropriate, a criminal history records check. Under this approach, a

criminal history records check would be required only when the

employment application process, including the history verification,

``triggers'' a need for one.

[[Page 51855]]

The proposed fingerprint-based criminal history records check process

was similar to that proposed in the NPRM.

Discussion of SNPRM Comments

The FAA received 34 comments in response to the SNPRM. Commenters

included Congressman James L. Oberstar, 12 airport operators, 3 air

carriers, 2 individuals, 3 small businesses, 1 state transportation

department, the Federal Bureau of Investigation, the U.S. Customs

Service and the following aviation organizations: Air Transport

Association (ATA), Air Transport Association of Canada (ATAC), Aircraft

Owners and Pilots Association (AOPA), Airline Pilots Association

(ALPA), Airport Law Enforcement Agencies Network (ALEAN), Airports

Association Council International (AACI), American Association of

Airport Executives (AAAE), Association of Flight Attendants (AFA),

Families of Pan Am 103/Lockerbie, National Air Transportation

Association (NATA), and Regional Airline Association (RAA).

Fifteen commenters support the employment investigation proposed in

the SNPRM. Several of these commenters commend the FAA for its response

and attention in addressing many of their major concerns in the initial

notice.

Seven commenters oppose the proposal, arguing against the need for

the employment investigation because no documented terrorist act has

ever been committed by someone with both unescorted access privileges

and a record of conviction for one of the disqualifying crimes listed

in the Act. One commenter questions the link between past convictions

for disqualifying crimes and future terrorist actions. Two commenters,

a member of Congress and the Families of Pan Am 103/Lockerbie, want a

more extensive employment investigation than that proposed in the

SNPRM. They suggest extending the employment verification portion to 10

years and applying the employment investigation to individuals with

existing unescorted access privilege.

Three commenters also discuss the degree of discretion provided the

Administrator in implementing the employment investigation requirement

of the Act. One commenter states that the Act does not require this

regulation and the FAA should not issue a final rule. Another states

that the Act requires only an employment investigation with a criminal

history check as the Administrator determines necessary. According to

this commenter, issuance of a rule is completely discretionary. A third

commenter contends that the statute mandates an employment

investigation, not a criminal history records check.

FAA Response: This rule enhances existing FAA security requirements

and supports the objectives of the Act through a cost-effective and

practical regulatory program. The FAA's security requirements focus on

protecting persons and property in air transportation against acts of

criminal violence, air piracy, and terrorism. These acts are neither

simple nor uniform, and are certainly not limited to sophisticated acts

of international terrorists with political motives or acts of deranged

individuals. Also of concern are individuals deliberately committing,

or deliberately or unknowingly assisting in the commission of criminal

acts against aviation for financial gain or reprisal. For example,

individuals with a history of felony narcotics distribution may be more

susceptible to exploitation by those wishing to target a passenger

aircraft. In this scenario, the employee would wittingly assist in

placing a package of purported narcotics on the aircraft, only to find

later that the packet actually contained an explosives device. A trust

is placed in individuals authorized to have unescorted access, and it

is reasonable to establish measures to reduce the likelihood that they

will present a security risk to civil aviation.

The U.S. aviation industry has not experienced incidents in which

there was a direct relation between the disqualifying offenses and a

serious security incident, such as a terrorist bombing or hijacking.

However, the Act indicates Congress' concern that an individual's

criminal history could show a disposition to engage in such conduct in

the future, which could result in a serious security incident.

Moreover, it is a reasonable and feasible precaution to prohibit

unescorted access to individuals with a criminal record for certain

types of crimes. This rule uses practices similar to other industry

standards (e.g., bankers, stockbrokers and employees at nuclear

facilities).

The Act requires the FAA to issue regulations subjecting

individuals with unescorted access to U.S. or foreign air carrier

aircraft, or to SIDAs of U.S. airports, to such employment

investigations, including a criminal history records check, as the

Administrator determines necessary to ensure air transportation

security. While the Act gives the Administrator flexibility in

implementing the employment investigation provision, the Congress

clearly contemplated that granting unescorted access privileges would

be tied to some type of employment investigation.

In response to the public hearings and written comments, the FAA

modified the initial proposal and developed the SNPRM to enhance

aviation security in a more cost-effective manner. The Conference

Report on the Department of Transportation Fiscal Year 1993

Appropriations legislation addressed the FAA's SNPRM stating:

The conferees have agreed to delete the language proposed by the

House that would have prohibited the Federal Aviation Administration

from implementing a rule to require criminal background checks of

airline and airport employees. The conferees' action is based on the

Federal Aviation Administration's Supplemental Notice of Proposed

Rulemaking published in the September 18, 1992, Federal Register in

which the Federal Aviation Administration revised an earlier

proposed rulemaking. The conferees recognize that the Federal

Aviation Administration has used its discretionary authority to

address the many concerns raised by the industry groups about the

operational, financial and constitutional issues associated with its

earlier proposal, and have concurred that the Federal Aviation

Administration should not be prohibited from moving forward with

this approach.

This action clarified Congress' view that the SNPRM conforms with

the legislative intent of the Act.

Discussion of the Final Rule

The FAA developed this final rule based on the legislative mandate

and the comments received during the rulemaking process. This rule

amends 14 CFR parts 107 and 108; and parts 107 and 108 of the Federal

Aviation Regulations (FAR). The rule expands the pre-existing

requirements for an investigation into the background of individuals

applying for unescorted access privileges to the SIDA of U.S. airports

by providing specific guidelines for requirements.

The final rule augments and clarifies the process required to

satisfactorily determine the eligibility of individuals for unescorted

access privileges. This rule requires the employment investigation to

include: provision of a 10-year employment history by those applying

for access; verification of the most recent 5 years of that history by

the employer; and the completion of a criminal history records check

when specific conditions are identified as a result of the information

obtained through the investigation process.

Similar in concept to the SNPRM, this final rule strengthens the

existing employment investigation requirement by providing specific

guidance on the type of information that must be

[[Page 51856]]

obtained and evaluated, identifying specific ``triggers'' that indicate

a need to conduct a criminal history records check, and establishing

recordkeeping requirements. This final rule differs from the SNPRM in

that it requires individuals applying for unescorted access privileges

to provide their employment history for a period of 10 years prior to

the date of application rather than 5 years. While the employer will

have to review the entire application, consistent with the SNPRM, only

the most recent 5 years of this history need be verified as part of the

employment investigation review. Hence, while an applicant will have to

provide additional employment history information, this will not

materially increase the burden on airport operators, air carriers or

other non-air-carrier airport tenants involved in granting unescorted

access privileges. The FAA believes that this approach increases the

effectiveness of the rule in identifying individuals with unexplained

gaps in employment who may have been convicted of the disqualifying

crimes during the past 10 years and will afford employers additional

information on which to base access determinations.

This final rule also modifies a key term used throughout the rule

to further clarify its intent. Since it was used in the Act, the term

``employment investigation'' was used extensively in the NPRM and the

SNPRM. While both notices specified that the ``employment

investigation'' is really related to access authority and not

necessarily to employment decisions, the final rule uses the term

``access investigation.'' The FAA believes that this term better

describes the intent of the rule.

The FAA Act of 1958 was recodified and appeared at 49 U.S.C.

Subtitle VII, then under Public Law 103-272, (effective July 5, 1994)

recoding occurred under 49 U.S.C. Code ``Transportation''. This Final

Rule lists both the new statutory numbers for crimes committed and the

former citations, in part because FBI records are likely to only have

the latter citations.

Another modification to the SNPRM is that the FAA will act as the

clearinghouse for criminal history records checks. The procedures for

processing fingerprint cards and associated fees are discussed later in

this preamble under Sec. 107.31(i), `Fingerprint Processing.''

Further Action Considered

Although this final rule makes an important improvement to the

civil aviation security system, and is fully consistent with the

rulemaking record, the FAA is currently evaluating whether further

changes may be warranted. Subsequent to the close of the comment period

for the SNPRM, this country has experienced two major acts of domestic

terrorism. The World Trade Center bombing and the recent bombing of a

Federal office building in Oklahoma City are evidence of the threat of

terrorism within the United States. While neither incident involved an

aviation target or appears to have involved individuals who had a

disqualifying criminal record that would have been disclosed by an FBI

fingerprint check, the incidents to raise questions about whether a

broader rule should be considered in light of the general level of

threat. It also raises questions about whether the statutory authority

should be expanded to include other persons with security

responsibilities, such as checkpoint screeners, who do not necessarily

have unescorted access to air carrier aircraft or to the secured area

of an airport. However, the FAA has concluded that it is essential and

appropriate to move forward with this final rule on the existing record

and not further delay action until the FAA's evaluation and possible

further rulemaking are completed.

The FAA intends to actively consult with airport operators and air

carriers as part of this evaluation. The effect of this rule and its

actual implementation by airports and air carriers will be followed

closely from the outset. In addition, input will be sought from the

Aviation Security Advisory Committee. The FAA will determine what

further actions may be necessary based on the evaluation. The FAA also

will review intelligence information in relation to the possible impact

of a more extensive criminal history check requirement.

Section-by-Section Analysis

Section 107.1 Applicability and Definitions

Escort

In the SNPRM, the FAA defined the term ``escort'' in

Sec. 107.1(b)(3). One commenter, NATA, states that the proposed

definition of escort implies that this function and any associated

responses must be performed by the same individual. NATA suggests that

an individual other than the one performing the escort be allowed to

perform follow-up actions, and that escorting by electronic means be

allowed.

FAA Response: This rule retains the definition of ``escort'' that

was included in the SNPRM, with minor modifications. Only an individual

authorized by the airport operator to have access to areas controlled

for security purposes may perform escorting. Specific action must be

taken, in accordance with local airport procedures, if the individual

under escort engages in activities other than those for which the

escorted access is granted. The definition is modified by adding a

sentence that explains that necessary responsive actions can be taken

by the escort or other authorized individuals.

The definition of escort adopted in this rule includes a

performance standard. The definition provides the latitude to use

various methods and procedures for the escort as long as they meet the

established standard. For example, an airport could choose to establish

escorting procedures for its general aviation areas that use electronic

means and prescribe specific follow-up actions.

Section 107.31 Access Investigation

107.31(a)--Applicability

Area Covered

Six commenters to the SNPRM discuss the applicability of the

regulation to the SIDA. RAA, ATA, and AOPA contend that at some

airports broad SIDA definitions include the entire air operations areas

(AOA). The commenters believe the FAA should mandate a consistently

defined, limited SIDA.

An airport operator requests a broader applicability of the rule

stating that two different levels of employment verification for SIDA

and non-SIDA areas controlled for security purposes will be confusing.

This operator recommends the rule apply uniformly to all areas that

require identification badges. AACI and AAAE contend that one standard

should apply to all, and they are particularly concerned that

individuals performing air carrier screening are not included in the

employment investigation rulemaking.

FAA Response: This rule applies only to airports that require

continuous display of airport-approved identification, i.e., the SIDA

as defined in Sec. 107.25. The SIDA typically includes the secured area

of an airport (Sec. 107.14 secured area) and some or all of the air

operations areas (Sec. 107.13).

FAA guidance has defined the areas and types of operations for

inclusion within the SIDA. Any expansion of an airport SIDA requires

FAA approval. In such instances, application of the policy guidance

assures uniformity to the extent practical. Given the varied

operational areas at airports, it is not

[[Page 51857]]

practical for the FAA to further define SIDA in the regulation.

The FAA has clarified that this rule does not apply to smaller

airports that do not have a continuous display requirement by removing

the reference to these airports contained in Sec. 107.31(a)(2) of the

SNPRM. However, if an airport has an area controlled for security

reasons that is not a SIDA, the existing 5-year employment history

verification continues to apply to individuals requesting unescorted

access authority.

The access investigation requirement of this rule applies to

individuals seeking unescorted access privileges in the SIDA as well as

those in a position to authorize others to have such access and

supersedes the 5-year employment history verification in the airport

security program for the covered individuals. The issuance or denial of

an identification credential for continuous display in the SIDA serves

as the vehicle for implementation of this requirement from a practical

and enforcement standpoint.

For individuals applying for positions that do not require SIDA

unescorted access privileges (and thus are not covered by this rule),

the existing security program language requiring the 5-year employment

history verification will continue to apply. This includes security

screening personnel and any other individuals with unescorted access

only to security-controlled areas outside of a SIDA. While having

somewhat different requirements may result in some extra administrative

effort, the commenters did not provide any specific information showing

that this will significantly increase the burden on airports. Except

for the authority to access an applicant's criminal history record, an

employer may use the application process specified in this rule in all

circumstances.

Definition of Employer

One commenter points out that the SNPRM implies that all persons

for whom an airport operator may authorize or deny unescorted access

privileges are employees of the airport subject to being hired or fired

by the airport operator. This commenter explains that many individuals

applying for unescorted access privileges are not airport operator

employees.

Two commenters address the consequences of the employment

investigation proposed in the SNPRM on the employment process. One

commenter believes the rule would affect the issuance of unescorted

access authority rather than employment. The other commenter states

that an employer would probably not hire a person who, based on

preliminary employment investigation results, cannot be authorized for

unescorted access privileges without going through a FBI criminal

record history check. This commenter assumes the termination of the

employment inquiry if it appears that a criminal records check is

needed.

FAA Response: The FAA agrees that the intent of the investigation

is to determine an individual's eligibility for unescorted access

authority. The Act, and the final rule, do not specifically prohibit

the employment of disqualified individuals; rather, they prohibit

individuals convicted of certain enumerated crimes in the past 10 years

from being employed in a position having unescorted access to secured

areas of a U.S. airport or to U.S. and foreign air carrier aircraft. As

previously noted, the final rule uses the term ``access investigation''

rather than ``employment investigation,'' which was used in the NPRM

and SNPRM. This change was made to clarify the intent of the rule. The

FAA recognizes that individuals affected by the rule include current

employees not previously granted unescorted access authority and

prospective employees of an airport operator, air carrier, tenants

other than air carriers, and contractors whose positions require

unescorted access. This rule does not attempt to establish guidance,

beyond ineligibility for unescorted access privileges, for the

disposition of an individual whose access investigation reveals a

conviction for a disqualifying crime.

Individuals With Current Access Authority

Sixteen commenters address exempting individuals with existing

unescorted access authority from the proposed employment investigation.

Fifteen of these commenters (including air carriers, airport operators,

unions, and non-air-carrier airport tenants) fully support the language

in the SNPRM that would exempt from the required employment

investigation all individuals who have current unescorted access

authority on the effective date of the final rule. This support follows

the recommendations made by the ASAC and numerous comments received in

response to the initial notice and the SNPRM.

One commenter (Congressman Oberstar) opposes the exclusion for

individuals with existing access authority. Congressman Oberstar

contends that the Commission's report recommendation and the Act's

employment investigation provision are intended to cover individuals

with existing authority and individuals applying for unescorted access

privilege. He argues that the existing 5-year employment history

verification is not subject to FAA approval, and the FAA has not

provided guidance on what constitutes an acceptable check. Therefore,

Congressman Oberstar states that the final rule must ``require that

current employment investigation programs conform with those mandated

in the final rule'' and that ``employers with non-conforming programs

must be required to conduct 5-year employment checks of current

employees to assure that they have undergone the same scrutiny as

applicants.''

One commenter is uncertain whether individuals exempted under the

proposal with a previous conviction for a disqualifying crime would

lose their privileges for unescorted access.

FAA Response: While the Act gives the FAA authority to require

employment investigations for individuals currently authorized for

unescorted access privileges, the Act confers discretion on the FAA

Administrator on methods for imposing such a requirement. Individuals

authorized to have unescorted access privileges since November 26,

1985, have been subjected to a 5-year employment history verification

required by the FAA in the security programs of airport operators and

air carriers. Since granting these individuals unescorted access

privileges, airport operators and air carriers have had the opportunity

to observe the individual's conduct.

The benefits, if any, of subjecting current employees with

unescorted access authority to the proposed access investigation would

not justify the disruption and cost that such a requirement would place

on the air carriers and airport operators. The estimated cost for

verifying employment histories of all existing employees would be an

additional $5.4 million. Further, because of typically high turnover

rates, much of the employee population with unescorted access will have

been subjected to the expanded background check within a relatively

short period. Therefore, the FAA concludes that air transportation

security does not require the retroactive application of this rule to

individuals with current unescorted access authority.

This rule does not require individuals currently authorized to have

unescorted access to disclose a past conviction for a disqualifying

crime. However, if a conviction occurs after the effective date

[[Page 51858]]

of this rule, an individual with unescorted access authority will be

subject to self-disclosure and disqualification from unescorted access

privileges (see the Individual Accountability requirements of

Sec. 107.31(l) and Sec. 108.33(h)).

120-Day Effective Date

Ten commenters address the timeframe between the final rule

issuance date and the effective date the industry must begin to comply

with the employee investigation requirements proposed in the SNPRM. Two

commenters agree with the 90-day implementation period and seven

commenters argue for a longer period of time. These commenters contend

that additional time is needed for airport operators, air carriers, and

airport tenants to set up the administrative procedures necessary to

implement the rule, coordinate with other airports on rights of

transfer, budget and plan for required expenditures, and train

personnel to implement the rule. Another states that an extended time

period will prevent difficulties similar to those being experienced

with the implementation of Sec. 107.14. ATA suggests a period of six

months to a year and another commenter proposes phasing in the

regulation, starting with the Category X airports one year after the

effective date. AACI and AAAE recommend that the effective date, rather

than the Federal Register publication date, be used to exclude

individuals holding existing unescorted access privileges from the

employment investigation requirements.

FAA Response: The affected parties have been provided ample

opportunities to comment on the implementation of Section 105 of the

Act through ASAC recommendations, and in response to the NPRM (for

which the comment period was extended), three public meetings, and the

revised proposal in the SNPRM. The access investigation requirements of

this rule should not place an excessive administrative burden on

airport operators and air carriers. The requirement to modify the

existing 5-year employment history verification and establish a

procedure to conduct a criminal history records check, where necessary,

utilizes many existing practices and procedures. However, as this rule

will affect a wide spectrum of airport tenants, and in hopes of

ensuring a smooth and orderly transition to the new procedures, the FAA

is making the rule effective 120 days after publication in the Federal

Register.

Section 107.31(b)--Access Investigation Requirements

Coverage of Access Investigation

Of the 15 commenters responding on this issue, 13 concur with the

FAA's proposal to use the 5-year rather than a 10-year employment

history verification as the primary screening procedure. The commenters

supporting the 5-year verification argue that covering more than 5

years would produce less useful information because it would be

difficult to find previous employers to provide reliable references,

require more staff and take a longer time to complete, resulting in

additional costs. According to these commenters, the expanded

application form, which includes the applicant's certification as to

prior criminal convictions, coupled with the enhanced 5-year

verification is sufficient to alert management of a need for further

investigation. One air carrier comments that it currently requires

applicants to provide 10 years of employment information, although it

only verifies the previous 5 years.

The two commenters opposing the 5-year employment verification,

Congressman Oberstar and the Families of Pan Am 103, believe that it

will not reveal convictions that may have occurred in the previous 10

years and that the proposal does not comply with the Act.

FAA Response: At the SNPRM stage, the FAA considered increasing the

employment history verification from 5 years to 10 years. It determined

that to do so would increase the costs and time spent on the

verification without appreciably enhancing aviation security. This

could result in triggering relatively few additional records checks,

but at an additional cost of at least $5.50 per access investigation or

about $9 million over the next decade. However, as a result of the

comments, the FAA carefully reviewed the 10-year employment history

issue. The FAA determined that it would be useful and reasonable to

require individual applicants to provide a 10-year employment history.

The additional information will increase the likelihood of identifying

12-month employment gaps and provide an additional decision tool to

employers.

Under the rule, airport operators, air carriers and other non-air-

carrier airport tenants are required to verify only the most recent 5

years. However, employment gaps of more than 12 months must be resolved

for the entire 10-year period or a records check accomplished. From a

practical viewpoint, the verification of an individual's 5-year

employment history provides an accurate indicator of the individual's

background and of the overall veracity of the information provided by

the applicant on the form. However, the additional employment history

information available to the employer enhances the 5-year verification

portion and increases the deterrent value of the application process.

Applicants planning to fabricate employment history information will be

faced with twice the challenge and their chance of discovery will thus

be increased. Truthful applicants will identify employment gaps that

require further evaluation.

The 10-year period is also covered by requiring the applicant to

list on the application convictions occurring in the past 10 years for

any disqualifying crimes. The application form also must notify

individuals that they will be subject to an employment history

verification and possibly an FBI criminal history records check.

Individuals who are subject to a criminal history records check would

be disqualified if their record discloses a conviction for any of the

listed crimes in the previous 10 years.

Because the disqualifying crimes are serious felonies, an arrest,

conviction, and incarceration would normally show up as a gap in the

individual's employment history, thus triggering a criminal history

records check. The requirement to conduct a criminal history records

check should help discourage anyone with a conviction for one of the

disqualifying crimes from applying for a position requiring unescorted

access authority.

Convictions for Disqualifying Crimes

Twelve commenters discuss the list of convictions for disqualifying

crimes. Three of the commenters specifically agree that arson should be

a disqualifying crime, as the FAA proposed in the SNPRM. AACI and AAAE

oppose having arson included as a disqualifying crime. These

organizations argue that, in their view, there is no significant

history of arson occurring on an airport ramp.

Ten commenters support disqualifying from unescorted access

privileges a person found not guilty by reason of insanity for any of

the disqualifying crimes. Some of the commenters argue that insanity is

not a crime and, therefore, some form of rehabilitation should be

allowed. As an example, the commenters refer to the State of California

system that requires that a person found not guilty by reason of

insanity must be certified as rehabilitated by a court before the

individual's rights are restored. ATA

[[Page 51859]]

points out that, in accordance with its reading of the Act and the

Americans with Disability Act, the FAA has the legal authority and

right to include insanity as a disqualifying factor. Another commenter

states that insanity as a disqualifying factor should be determined on

a case-by-case basis and that the final determination should be based

on national and local FAA field office guidelines to ensure nationwide

consistency.

AACI and AAAE state that ``certain crimes aboard aircraft in

flight'' is too vague and that this disqualifying crime needs to be

better explained. They are also concerned that the regulation would not

permit an employer to take into account rehabilitation. They argue that

the Act is arbitrary because it assumes rehabilitation would

``magically'' occur after 10 years, but cannot be taken into account

before the 10 years for purposes of allowing unescorted access.

Three commenters state that the regulation should not limit the

employer to those crimes on the list. In their view, an employer should

have some discretion to include other crimes or conditions as

disqualifying.

Two commenters assert there should be measures for punishing

applicants who falsify the information they provide on the application

forms or, at a minimum, disqualifying the individual from unescorted

access. One of these commenters states that individuals convicted of

any of the disqualifying crimes would not hesitate to falsify an

application form and that stronger measures are needed, such as making

it a Federal crime to falsify such information.

FAA Response: As proposed, this rule adds felony arson to the list

of disqualifying crimes. (In the SNPRM, FAA proposed ``arson''; the

rationale for the clarifying change can be found below.) The deliberate

nature of the offense and the safety and practical considerations of

fueling aircraft make it logical to do so. Although the FAA is not

aware of any instance where an individual with unescorted access

privileges ever perpetrated an act of arson at an airport, arson has

occurred at airports and is too dangerous an act to omit it from the

list of disqualifying crimes.

Also, in response to comments received on the initial notice and

the SNPRM, this rule adds ``not-guilty by reason of insanity'' for any

of the disqualifying crimes as a disqualifying factor. While

recognizing that insanity is not a crime, the FAA concludes that

insanity associated with a disqualifying crime should be a

disqualifying condition because of the seriousness of these crimes and

the difficulty involved in ascertaining recovery.

The FAA has made some minor clarifying changes to the introductory

language of Sec. 107.31(b). The phrase ``in any jurisdiction'' has been

added to parallel the language of the Act. Also added is the phrase ``a

crime involving * * *'' to the enumerated offenses in order to make

clear that the intent of the rule is to disqualify an individual who

has been convicted of one of the disqualifying offenses, even if the

name of the statute under which the individual was convicted does not

exactly match the language of the final rule. As long as the conviction

involves a crime specified in the rule, the individual would be

disqualified.

In its comment to the NPRM, the Department of Justice's Criminal

Division requested several changes to the rule language to which the

FAA has agreed. The Division suggested that we limit disqualifying

convictions for arson to felony arson in order to exclude instances of

minor vandalism. The Division also requested that some of the

disqualifying offenses be further defined. These revisions include:

Sec. 107.31(b)(2)(xvii): the phrase ``or hostage taking''

has been added after ``kidnapping'';

Sec. 107.31(b)(2)(xix): the phrase ``or aggravated sexual

abuse'' has been added after ``rape'';

Sec. 107.31(b)(2)(xx): the word ``use'' has been added

before ``sale.''

It is the FAA's understanding and intent that these changes clarify

the intent of Congress but do not substantively expand the list of

disqualifying crimes. The Criminal Division also requested that

Sec. 107.31(b)(2)(xxv) be revised to include ``attempts'' to commit any

of the aforementioned criminal acts. The Division states that while

this section, as proposed, included a conviction for conspiracy to

commit any of the enumerated offenses (as required by the Act), the

conduct underlying an attempt may be more serious than that required to

support a conviction of conspiracy. The FAA has therefore revised this

section to include the phrase ``or attempt.''

The Act provides no discretion for rehabilitation, requiring only a

10-year period from the time of the conviction for the disqualifying

offense. This rule also includes the 10-year period for instances of

not guilty by reason of insanity.

In the rule, the FAA does not attempt to further define the

commission of ``certain crimes aboard aircraft'' because it is one of

the named disqualifying crimes from the Act. An individual's criminal

record would reflect convictions for this offense as a specific

violation listed in 49 U.S.C. 46506.

This rule limits the mandatory disqualifying crimes to those

required by the statute and the additional disqualifiers discussed

above. Apart from meeting the requirements of this rule for unescorted

access privileges, an airport operator and air carrier will retain

discretion to determine the suitability and qualifications of

applicants for unescorted access privileges based on any other

information available to them.

This rule does not include penalties for falsifying application

information. It is not a disqualifying condition covered by the Act,

and the decision to deny access based upon falsification would be a

local determination. However, substantial inconsistencies between

required information provided on the application and information

obtained during the access investigation would trigger a criminal

history records check.

If the access investigation discloses a conviction for a

disqualifying crime in the previous 10 years measured from the date the

verification is initiated, the individual may not be granted unescorted

access authority. The Act does not allow the consideration of the

possible rehabilitation of an individual.

The disqualifying crimes identified in this rule include specific

sections of 49 U.S.C. Chapters 463 and 465, sections of the United

States Criminal Code, offenses named in the Act, and two additional

disqualifiers.

The specific sections of 49 U.S.C. Chapters 463 and 465 are: (b)

Sec. 46706 forgery of certificates, false marking of aircraft and other

aircraft registration violations; (c) Sec. 46308 interference with air

navigation; (h) Sec. 46312 improper transportation of a hazardous

material; (i) Sec. 46502 aircraft piracy; (j) Sec. 46504 interference

with flightcrew members or flight attendants; (k) Sec. 46506 commission

of certain crimes abroad aircraft in flight; (l) Sec. 46505 carrying a

weapon or explosive aboard an aircraft; (m) Sec. 46507 conveying false

information and threats; (n) Sec. 46502(b) aircraft piracy outside the

special aircraft jurisdiction of the United States; (q) Sec. 46315

lighting violations involving transporting controlled substances; and

(r) Sec. 46314 unlawful entry into an aircraft or airport area that

serves air carriers or foreign air carriers contrary to established

security requirements.

The disqualifying crime in 18 U.S.C. 32 is the destruction of an

aircraft or aircraft facility.

The other disqualifying crimes are: murder; assault with intent to

murder;

[[Page 51860]]

espionage; sedition; kidnapping or hostage taking; treason; rape or

aggravated sexual abuse; unlawful possession, use, sale, distribution,

or manufacture of an explosive or weapon; extortion; armed robbery;

distribution of, or intent to distribute, a controlled substance;

felony arson; conspiracy or attempt to commit any of these criminal

acts; or a finding of not guilty by reason of insanity for any of these

criminal acts.

This rule does not limit the ability of airport operators and air

carriers to review an individual's complete FBI criminal history

record, although the record may not be requested unless one of the

regulatory triggers is met. However, any decision to deny unescorted

access may be attributed to this rule only if it is based on the

individual's conviction within the previous 10 years of an enumerated

crime. Any other adverse information contained in the criminal record

does not disqualify an individual under this rule.

Section 107.31(c)--Elements of Access Investigations

Employment History Verification

A number of commenters support the process for conducting the

verification outlined in the SNPRM. In the SNPRM, the FAA proposed that

applicants be required to prove their identity by providing two forms

of identification (ID), including a photo ID. In the SNPRM, the FAA

proposed that applicants would have to explain employment gaps of more

than 12 months in the previous 5 years, and that employers would have

to verify information on the application for unescorted access in

writing, by telephone, or in person. The FAA solicited comments on

whether other means of verifying an individual's employment, such as

written documentation, should be acceptable in the verification

process.

Two commenters specifically support accepting documentation instead

of telephone calls or visits to previous employers. One commenter

suggests that legitimate gaps in employment can be documented by copies

of school records or certified letters of references from physicians,

clergy, or other professionals. Two commenters caution that the rule

could have the unintended consequence of generating greater paperwork

burdens on employers who must keep records of how they verified

employment. Another commenter opposes adding security-related

information requirements to its application forms, fearing that such

forms could become needlessly lengthy.

FAA Response: This rule specifies the information required on the

application, requires proof of the individual's identity, and requires

verification of representations made by the individual. The FAA has

crafted the rule using existing industry procedures and practices where

possible to avoid creating unnecessary paperwork burdens. The

individual applying for unescorted access privileges must complete an

application form that includes: (1) the individual's full name, as well

as any aliases or nicknames; (2) the dates, names, phone numbers, and

addresses of the individual's previous employers for the last 10 years,

with explanations for any gaps in employment of more than 12 months;

(3) a notice that the individual will be subject to an employment

history verification and possibly a criminal history records check; and

(4) a question asking if the individual has been convicted of any of

the disqualifying crimes or conditions during the previous 10 years.

To assist the applicant in understanding the question on

convictions, it would be advisable for the application to include a

list of the disqualifying crimes or conditions. This rule permits

supplementing an existing application form with a separate sheet

requesting the required information and questions.

The information on the application will help identify applicants

who may have a disqualifying conviction. For example, an unexplained

gap in employment may have occurred due to incarceration for a

conviction of a disqualifying crime. The airport operator is

responsible for verifying, or accepting certification that the

information required on the employment application was verified, to the

extent necessary, to validate representations made regarding the most

recent 5-year period. This process is similar to that used for the

existing 5-year employment verification conducted by telephone, in

writing, or in person.

This rule allows the use of documentation to verify an individual's

previous employment history. However, it is important for airport

operators and air carriers to carefully examine the documentation

provided to guard against counterfeit documentation.

In cases where a previous employer has gone out of business, a

reasonable attempt to verify the period of prior employment should be

made. Pay stubs, tax records or other documentation may be used to

support the statements on the application.

Section 107.31(n) requires maintaining a record of the method used

to verify the applicant's most recent 5 years of employment and the

results obtained. Section 107.31(n) also discusses the specific

recordkeeping requirements.

Conditions Requiring a Criminal History Records Check

Four commenters address the conditions that ``trigger'' the

requirement for an FBI criminal history records check. One commenter

fully supports the triggers proposed in the SNPRM although it requests

that the triggers not be considered as limitations. This commenter

suggests that an airport operator or air carrier could elect to conduct

a complete criminal history records check if, for example, it found an

unexplained gap in employment of less than 12 months. Another commenter

questions the adequacy of a 12-month period asserting that a person

could serve less than 12 months for a disqualifying crime or could be

allowed to plead guilty to a lesser crime.

AACI and AAAE believe that two of the conditions triggering a check

are virtually identical to each other. These are: (1) the individual is

unable to support statements made or there are significant

inconsistencies between information provided on the application in

response to questions required by the rule and that which is obtained

through the verification process; and (2) information becomes available

during the employment history verification indicating a possible

conviction for one of the disqualifying crimes.

FAA Response: If one or more of the conditions or ``triggers''

established by the rule is activated, a fingerprint-based check of the

criminal records maintained by the FBI must be completed prior to

determining if unescorted access authority will be granted. An airport

operator or air carrier is not permitted to establish additional

triggers for requesting a criminal check under the authority provided

by this rule.

The Act provides the statutory authority for airport operators and

air carriers to access FBI records. The Act has been implemented by

these regulations, which limit the circumstances under which the

airport operator or air carrier can get the criminal history record.

However, on its own authority, a potential employer could disqualify

someone from unescorted access authority or refuse to hire an

individual for an unexplained gap in employment of less than 12 months,

or for any other reason. Of course, these actions would have to be

[[Page 51861]]

consistent with other applicable laws. Also under its own authority, an

employer could apply the employment verification (but not the FBI

criminal history records check), to any employees, not just those

covered by this rule.

The ``triggers'' or conditions for the criminal history records

check are based on information supplied by the aviation industry on the

criteria used by some air carriers to screen job applicants. The

combination of triggers provides the appropriate conditions to trigger

the requirement for further review of the individual's background

through a criminal history records check.

Under the first trigger, an individual who is not able to

adequately account for 12 months or more of unemployment over the past

10 years in a manner that substantiates that he or she was not

incarcerated for a disqualifying crime would be subject to a criminal

history records check. Note that while there is no requirement to

verify the information in an applicant's employment history for years 6

to 10, there is an obligation to resolve periods of unemployment of

more than 12 months. Unemployment for a 12-month period or more does

not automatically trigger a check. Rather, the criminal check is

required when the period of unemployment cannot be verified through the

checking of appropriate documentation or references. For example, a gap

can be satisfactorily explained by receipts for unemployment

compensation, travel records, or other information providing sufficient

evidence of an individual's whereabouts. In instances where an

individual was self-employed, tax records, billing records, work orders

or other means can be used to support the claims made on the

application.

Second, a criminal history records check is triggered if there is

an inability to substantiate statements made, or if there are

significant inconsistencies between the information provided by the

applicant or the information obtained during the employment

verification. This requirement is intentionally defined using broad

terms to allow the airport operator and employer to determine what is

acceptable. However, if an individual's employment cannot be verified,

this is considered an inability to substantiate statements made.

Third, if information becomes available during the course of the

access investigation indicating a possible conviction for one of the

disqualifying crimes, a criminal history records check is required.

Responding to the question raised by AACI and AAAE, there is a

significant difference between finding out during the access

investigation process that information provided was not correct versus

finding information that indicates the individual may have a conviction

for a disqualifying crime. If incorrect information is provided, it

does not necessarily indicate the presence of a disqualifying

conviction that raises questions about the individual's truthfulness.

An individual's truthfulness is a key component of the access

investigation process. Lack of veracity suggest the need to investigate

further to determine if the person is trying to conceal a conviction

for a disqualifying crime.

The purpose of the last trigger is to identify individuals that may

require a criminal check based on any positive information identified

during the access investigation. The trigger is intended to

substantiate information provided.

Section 107.31(d)--Escorted Access

Under Sec. 107.31(d) of the SNPRM, an individual who does not have

unescorted access privileges may be permitted to enter a security area

under escort. Five commenters object to allowing an individual who is

the subject of a criminal history investigation access to a secured

area even under escort because an on-going investigation indicates the

likelihood of a criminal record. Three commenters also believe that the

escort language proposed in Sec. 107.31(d) of SNPRM is inconsistent

with the FAA's policy in Sec. 107.14.

FAA Response: This rule requires individuals who have not been

authorized to have unescorted access authority to be under escort, as

defined in Sec. 107.1(b)(3), while the SIDA. The employer retains the

option of completing the access investigation prior to hiring an

individual needing unescorted access privileges rather than providing

an escort while the investigation is pending. The primary means of

determining an individual's eligibility for unescorted access is the

access investigation, including a 5-year employment history

verification, which normally takes from 5 to 10 days to complete. Thus,

escorting is not necessary for most individuals while undergoing the

check because the applicants would not be employed in a position whose

utility is predicated on unescorted access until completion of the

employment history verification.

The primary reason for security access under this rule is for

individuals awaiting a criminal history records check.

Escorted access is permissible while in the security sensitive area

even though a criminal history records check has been triggered. A

criminal history records check may take from 30 to 90 days to complete;

escorted access is allowable when the employment history verification

triggers one of the conditions requiring a criminal check. There is

nothing in the rule language that requires an airport operator to

provide escorted access into a SIDA to an individual undergoing a

criminal history records check.

Under the FAA's policy on Sec. 107.14(a) access controls, an

individual with Sec. 107.14(a) access privileges may not be escorted

through an access point meeting the requirements of Sec. 107.14. Each

person with Sec. 107.14(a) access must be subjected to the access

control system. Because Sec. 107.31(d) is applicable only to

individuals not authorized for unescorted access, the escort language

in this section is consistent with the FAA's policy on Sec. 107.14.

Section 107.31(e)--Exceptions to the Investigation Requirements

Six commenters respond to the proposed exceptions from the

employment investigation included in the SNPRM. The exceptions included

Federal, State, and local government employees who as a condition of

employment have been subject to an employment investigation; crew

members of foreign air carriers covered by alternate security

arrangements; individuals who have been continuously employed in a

position requiring unescorted access by another airport operator,

tenant, or air carrier; and individuals who have been authorized access

to the U.S. Customs Service security area of an airport.

Under this rule, certain categories of individuals are excluded

from the access investigation requirement. The FAA expects each airport

operator to develop the procedures it uses to implement this section

and, where appropriate, issue the individual identification media

indicating authorization for unescorted access privileges.

Government Employees

Two commenters request selective application of the exception for

Federal, State, and local government employees because employment

verification by different entities may not be as stringent as that

proposed in the SNPRM. The commenters also raise concerns over the

issue of Federal and local law enforcement officers observing the

airport's access rules and requirements. Another commenter wants to

ensure that the final rule does not alter the

[[Page 51862]]

access authority of FAA Safety Inspectors using Form 8000-39.

FAA Response: This rule adopts the language proposed in the SNPRM

that no additional investigation is required for Federal, state, and

local government employees who have been subjected to an employment

investigation by their respective agencies. Typically, the government

employer subjects applicants to an employment investigation that is at

least equivalent to that proposed in this rule. For example, both

Standard Form 171 and Optional Form 306 requires Federal applicants to

disclose convictions, and the Office of Personnel Management, where

appropriate, conducts a criminal history records check. The rule also

provides an option to except state and local governments. This

exception will reduce the cost and burden of implementing this rule,

while maintaining an effective level of security. Airport operators

should work with representatives from the Federal, state and local

government agencies to resolve the type of biographical information

needed to receive the identification media.

With regard to using Form 8000-39, this rule will not have any

effect. Form 8000-39 will continue to authorize the FAA Inspectors to

be present in an air operations areas to conduct short term duties

associated with their safety related responsibilities.

Foreign Air Carrier Employees

Five commenters address the application of the employment

investigation to employees of foreign air carriers. ATA believes the

alternate security arrangement for foreign air carrier flightcrew

members included in the SNPRM creates ``serious competitive imbalances

between U.S. and foreign carriers. . . .'' ATA implies that the

advantage would be to the foreign carriers.

ATAC states that it does not object to the requirement to conduct

employment investigations for individuals employed by Canadian carriers

in the U.S. applying for unescorted access. However, ATAC contends that

the alternative program for transient air crews is unnecessary because

Canadian carriers already subject their air crews to a ``criminal/

subversive/financial security check'' before a Transport Canada Airside

Restricted Area Pass to operate from Canadian airports is granted. ATAC

argues that this security check exceeds the employment investigation

requirement in the SNPRM and that the FAA should, therefore, allow

Canadian air crews unrestricted access in U.S. airports or at least to

areas and offices necessary for operational functions.

A foreign air carrier raises several concerns. The first is related

to section 105(a) of the Act which states: ``Nothing in this subsection

shall be construed as requiring investigations or record checks where

such investigations or record checks are prohibited by applicable laws

of a foreign government.''

This commenter states that the investigation of employees hired in

another country and assigned to duty in the U.S. could require an

investigation of records in some other country where privacy laws

prohibit such an investigation. The commenter recommends addressing

this conflict in the rule by stating that such investigations be

performed only to the extent permitted by law in the foreign country.

This foreign air carrier requests that the alternate security

procedures be expanded to include all crew members and to areas beyond

the footprint of the aircraft. (The preamble to the SNPRM explained an

example of an alternate system as language in the airport security

program permitting a foreign air carrier flightcrew member to have

unescorted access or movement limited to the footprint of their

aircraft.) The commenter asks that the FAA's final rule explicitly

require airport operators to consult with foreign air carriers to

identify areas to which crew members need access using the alternate

security arrangement.

This carrier also suggests that the SNPRM be revised to allow

foreign air carriers to use temporary personnel without performing an

employment investigation. According to the commenter, these personnel

could be subject to alternate security arrangements, specified in an

airport operator security program, restricting access of such personnel

to the areas necessary for performance of their jobs. The carrier

contends that the revision is needed because foreign air carriers often

require services of special relief personnel at particular airports for

brief periods. The commenter believes that temporary duty assignments

are vital to foreign air carriers, which have significantly fewer

permanent personnel based in the U.S. than do domestic carriers.

Therefore, an employment investigation of such employees is not

feasible because it would counteract the flexibility needed to quickly

hire temporary employees for unanticipated increases in workload.

FAA Response: This rule adopts the proposal outlined in the SNPRM,

with one modification for foreign air carrier employees. The Act, and

hence this rule, apply only to U.S. airports. Therefore, under this

rule, foreign nationals and U.S. citizens working in the U.S. for a

foreign air carrier will be subject to an access investigation for

unescorted access privileges in a manner similar to non-air-carrier

airport tenants. While the airport operator is responsible for ensuring

that the investigation is completed, the foreign air carrier could

perform the employment history verification as it currently does at

most airports.

This rule allows an airport operator to implement an alternate

security arrangement in its approved airport security program for

foreign air carrier crew members. The final rule uses the broader term

``crewmember'' rather than ``flightcrew member'' as proposed in the

SNPRM. In accordance with present FAA policy on ramp movement, however,

the alternate arrangement would be limited to foreign flightcrew

members (i.e., captain, second-in-command, flight engineer, or company

check pilot) in the immediate vicinity of the aircraft to which they

are assigned. The FAA is willing to consider the merits of including

cabin crew and expanding the scope of ramp movement for foreign air

carrier crew members on a case-by-case basis. Any alternate

arrangements should be developed with and coordinated through the

airport operator.

Responding to the concerns raised by ATA over the proposed

authority to permit alternate arrangements for foreign crew members,

the FAA has determined that it is reasonable from a security

standpoint, and consistent with international practices, to permit

limited access (around the assigned aircraft). Failure to provide

alternate procedures for foreign air carrier crews could result in the

adoption of additional requirements for investigations by foreign

countries for U.S. air carrier personnel. There are significant

operational restrictions associated with using the alternate

arrangement that outweigh any associated financial advantages that may

accrue to a foreign air carrier. In addition, there is a very low

probability of detecting disqualifying convictions for a foreign

national based outside the U.S. through an investigation of FBI records

because those records normally include only arrests and convictions

occurring in the U.S.

This rule does not specifically allow for the acceptance of the

Transport Canada Airside Restricted Area Pass as meeting the rule's

requirement. However, the required access investigation is more easily

[[Page 51863]]

accomplished for Canadian flightcrew members as a result of that

country's program. The approach of the Canadian system, or similar

systems in use by other countries, could result in the facilitation of

using documentary evidence of employment verification.

The FAA agrees that the Act limits employment investigations to the

extent allowable by the law in the foreign country. However, if the

employment history verification or other aspects of the access

investigation could not be completed as a result of another country's

law, this would trigger a need to conduct the criminal history records

check.

The problem of temporary employees is not specific or limited to

foreign carriers. This rule would apply to any individual applying for

unescorted access privileges. Considering the short period of time it

takes to perform the employment history verification portion of the

access investigation (which would authorize most individuals for

unescorted access authority), the FAA contends this is not an

unreasonable requirement; moreover, if the assignment is of short

duration, escorting may be the simplest solution.

Transfer of Privilege

Two commenters believe that an individual who has been continuously

employed by an air carrier, airport operator, or non-air-carrier tenant

should be authorized unescorted access without having to be

continuously employed in a position requiring unescorted access.

Another commenter recommends that the FAA implement a uniform process

for accepting transfers of individuals, so that there will be

nationwide consistency in applying this provision. ATA expresses

concern that the authority to grant unescorted access privileges to an

individual transferring from one air carrier to another should be the

exclusive responsibility of the air carrier. AACI and AAAE also

question whether individuals transferring their authority for

unescorted access must receive SIDA training at the new location.

FAA Response: This final rule adopts the proposal included in the

SNPRM that provides an exception to the access investigation

requirements for individuals who have already been subject to one.

However, this rule retains the requirement that an individual

transferring unescorted access privileges must have been continuously

employed in a position requiring unescorted access since first being

authorized unescorted SIDA access. The requirement to be continuously

authorized should not present a burden for companies transferring

individuals in positions within a company.

The rule does not attempt to establish uniform procedures for

accepting transfers; rather, the rule sets the minimum requirement for

continuous employment in a position with unescorted access privileges.

The FAA expects the airport operator and the air carrier to cooperate

in determining the process for an individual transferring from one

carrier to another.

This rule does not affect the regulatory requirement for SIDA

training. Under Sec. 107.25 and associated FAA policy, individuals who

have been subject to SIDA training who subsequently transfer their

unescorted access authority must receive site-specific SIDA training at

the new airport.

Individuals Subject To Investigation By Customs

One commenter suggests that the FAA coordinate with the U.S.

Customs Service on its pending access rule for Customs Service security

areas of an airport. The commenter's concerns focus on the effect on

operations, costs, and possible duplication of the two rules.

FAA Response: This rule permits an airport operator to accept the

background checks performed by the U.S. Customs Service to meet the

FAA's access investigation requirement. Accepting the background

investigation by Customs avoids a redundant check, while providing an

equivalent or higher level of security for individuals with unescorted

access. Because the Customs check is more extensive (it includes

misdemeanor theft convictions) than that contained in this final rule,

failure to obtain access authority to the Customs area would not

preclude an individual from obtaining unescorted access to the SIDA,

but would require the individual to be subjected to an access

investigation under this rule.

Section 107.31(f)--Investigations by Air Carriers and Airport Tenants

Eight commenters address issues concerning the airport operator's

acceptance of air carrier employment investigations and non-air carrier

tenants' employment history verifications.

ATA notes that in the SNPRM preamble an airport operator is given

the latitude to expand the scope of the employment history verification

to cover areas beyond that required under the proposal. ATA urges the

FAA to limit an airport operator's authority to impose additional

verification requirements on air carriers. It recommends that the final

rule clearly state that the air carrier is exclusively responsible only

for fulfilling the employment investigation requirements of

Sec. 108.33.

ATA and RAA express concern that the SNPRM preamble explanation of

Sec. 107.31(F) allows an airport operator discretion to accept

certification from an air carrier. These commenters recommend that the

process be mandatory thus requiring the airport operator to accept

their checks. The carriers have concerns that airport operators may

require employment investigations beyond that necessary to meet the

regulatory requirement.

One commenter states that an airport operator should be able to

rely on certification by any tenant employer for the employment

verification. Another commenter believes that the authority to certify

employees should extend to part 129 carriers who operate in accordance

with an exclusive area agreement and to indirect air carriers subject

to part 109.

Three commenters oppose the requirement that the airport operator

be responsible for the criminal history records check of all airport

tenants other than U.S. air carriers and two commenters support this

requirement. One commenter argues that the results of any criminal

investigation would be most beneficial to the direct employer, as would

information concerning arrests with no disposition. One commenter

opposes any delegation to air carriers of the responsibility for

criminal history records checks of their contractors because many of

these contractors serve more than one air carrier. According to this

commenter, conducting criminal history records checks on contractors

should be the responsibility of the airport operator.

FAA Response: This final rule adopts the procedures proposed in the

SNPRM for accepting air carrier access investigations and non-air-

carrier tenant employment history verifications. Regarding the

expansion of the employment history verification requirements, this

rule establishes the guidelines for an acceptable verification. Each

airport operator will specify these requirements in its security

program subject to FAA approval. The FAA will limit approval to the

employment history verification requirements outlined in this rule.

Under Sec. 108.33, air carriers perform the access investigation

for their employees. Therefore, it is logical that an airport operator

would accept the air carrier's investigation without placing any

additional requirements on the carrier. An airport operator's receipt

of

[[Page 51864]]

the air carrier's certification satisfies its regulatory obligation.

The airport operator may accept a written statement that the employment

history verification and, where appropriate, the criminal history

records check were performed as part of the process of an air carrier

issuing identification credentials to its employees. If a specific air

carrier employee or its contractor employee is receiving airport-issued

identification, the airport operator must receive certification for

each employee prior to issuing an identification credential. The

certification should include a statement that the investigation was

conducted in accordance with Sec. 108.33 and provide the name(s) of the

individuals requiring the unescorted access authority credential.

However, the air carrier should retain the specific documentation

supporting the access investigation.

The rule also includes a provision permitting an airport operator

to accept written certification from airport tenants that they have

reviewed the applicant's 10-year employment history and verified the

most recent 5 years of that history. Again, the airport tenant should

retain the specific documentation supporting this certification.

Pursuant to the Act, only airport operators and air carriers can

request a criminal history records check, although the costs of such

checks will normally be borne by the employer. Thus, the airport

operator must process criminal history records checks for all airport

tenants other than U.S. air carriers. However, the airport operator is

responsible only for the unescorted access privilege determination.

Employment-related decisions such as hiring and firing, and an

individual's status while a criminal history records check is pending,

rest with the airport tenant.

For purposes of this rule, non-air-carrier tenants include airline

food service companies, fixed base operators, foreign air carriers, and

indirect air carriers subject to part 109 whose employees receive

airport identification.

Section 107.31(g)--Appointing Contact

Six commenters respond to the issue of the airport operator

appointing a person who will be responsible for reviewing the results

of the employment investigation, determining an individual's

eligibility for unescorted access and serving as the liaison if the

individual disputes the results of a criminal check. As proposed in the

SNPRM, the appointed person could delegate the day-to-day duties, but

would serve as the FAA's point of contact with the airport for purposes

of monitoring compliance with the employment investigation requirement.

In the SNPRM, the FAA also solicited comments on whether it should

require the contact to be the airport security coordinator (ASC). Five

commenters acknowledge that the ASC would be the contact, but believe

the FAA should not require or specify the position.

FAA Response: This final rule requires the airport operator to

designate the ASC required under Sec. 107.29 as the contact for access

investigations. The ASC can delegate the duties while continuing to

serve as the FAA's point of contact with the airport for purposes of

monitoring compliance with this rule. This is consistent with the

requirements of Sec. 107.29 that the ASC serve as the airport

operator's primary contact for security-related activities and

communications with the FAA.

The ASC, or designee, is responsible for reviewing the results of

the access investigation and determining an individual's eligibility

for unescorted access privileges. The ASC also serves as the liaison

when the individual disputes the results of the criminal history

records check that revealed information that would disqualify the

person from unescorted access.

Section 107.31(h)--Individual Notification

The FAA received no comments on this section.

Note: An individual covered by this rule must be notified of the

need for a criminal history records check prior to commencing the

check. Because the FAA will serve as the entity to process the

criminal history records check required by this rule, this section

of the final rule is modified from that proposed in the SNPRM by

removing the language related to designating an outside entity.

Section 107.31(i)--Fingerprint Processing

The Act provides the FAA Administrator, in consultation with the

Attorney General, the authority to designate persons to obtain and

transmit fingerprints, and receive the results of a criminal history

records check. In the SNPRM, the FAA proposed allowing airport

operators and air carriers to directly contact the FBI or use an

outside entity to request and process the criminal history records

checks. The Department of Justice has agreed that airport operators and

air carriers may access the criminal records system. The FBI indicates

concerns about the FAA's SNPRM proposal to have multiple entities

request the checks. The FBI recommends that the FAA serve as the

central processor, suggesting the use of a system similar to that of

the Nuclear Regulatory Commission (NRC). The NRC serves as the

processor of FBI criminal history records checks for the nuclear

industry.

Nine comments address the issue of having a centralized processor

or ``clearing house'' batch and process the FBI criminal history

records check requests. Many of the commenters note that the proposed

language in the SNPRM would result in far fewer criminal history checks

being conducted (compared to the NPRM) and question whether a non-

governmental clearing house is feasible for so few requests. As an

alternative, they recommend that the FAA serve as the processor.

Three commenters focus on the related issue of screening criminal

history records check results. RAA supports the concept in the SNPRM

that allows the airport operator and air carriers to review an

individual's complete record. Two commenters state that a complete FBI

record should not be sent to the airport operator or air carrier;

rather, the records should be screened in some manner to determine

whether a disqualifying conviction occurred and only that information

provided. These commenters believe there is a significant privacy issue

involved in releasing an entire record. NATA believes that the FAA

should check the records and report any disqualifying convictions to

the airport operator. AOPA suggests developing a reply form for the

airport operator to submit along with the criminal history records

check card. AOPA recommends that the FBI could use this form to return

a response to the airport of ``qualified or disqualified'' for

unescorted access privileges. AOPA also states that because the FAA is

proposing to mandate these criminal checks, it must take an active role

in protecting the rights of individuals affected by this rule and

institute strict procedures to protect sensitive personal information.

Seven commenters express concerns over the authority needed by

airport operators and air carriers to gain access to the FBI's criminal

history record database. Another commenter suggests that the FAA obtain

access authority to the National Crime Information Center (NCIC)

automated database to allow for a ``name check'' of individuals

applying for unescorted access authority.

FAA Response: The FAA has consulted with the Attorney General, as

required by the Act, and has obtained the Department of Justice's

concurrence in the following procedures. The FAA is following the

recommendations made by the commenters, including the FBI, and will

serve as the central processor for the criminal history records check

[[Page 51865]]

requests submitted to the FAA by airport operators and air carriers.

The FAA will serve as the clearinghouse, in a manner similar to the NRC

and will ensure fingerprint cards are forwarded to the FBI in a timely

and cost effective manner. A $24.00 fee will enable the FAA to recover

its cost of processing and obtaining the FBI records. The FAA will

charge the same $24.00 user fee currently levied by FBI on the banking,

securities, commodities futures trading industries and the NRC. The fee

is subject to increase without prior notice upon determination by the

FBI. Parties subject to this rule will be notified of fee increases by

amendments to this rule in the future.

Upon completion of the FBI records check, the complete FBI record

will be forwarded to the requesting entity. The regulation places

specific limits on the use of the information contained in the criminal

history records check. This issue is addressed in the preamble

discussion of Sec. 107.31(m).

The FAA has researched the possibility of using the NCIC system to

allow airport operators and air carriers an alternative method for

obtaining criminal history information for individuals applying for the

privilege of unescorted access. As stated in the Notice of Public

Meetings, and as discussed at the public meetings held on the initial

notice, under published policy established by the NCIC's Advisory

Policy Board, the NCIC is not available to check the records of

applicants for employment in aviation related industries. In addition,

checking an individual's name and other identifying information does

not provide the same level of positive identification that derives from

the use of a check based on an individual's fingerprints.

This final rule includes procedures for collecting fingerprints and

requires that one set of legible fingerprints be taken on a card

acceptable to the FBI (i.e., Federal Document 258). The airport

operator may choose to have the airport law enforcement officers take

the fingerprints. The FAA also requires verifying the individual's

identity when taking his/her fingerprints. The individual must present

two forms of identification, one of which must bear the individual's

photograph. A current driver's license, military identification, or

passport are examples of acceptable photographic identification. In

addition, the fingerprint cards must be handled and shipped in a manner

that protects the privacy of the individual.

Airport operators will send the fingerprint cards to the Federal

Aviation Administration, 800 Independence Ave. SW., Washington, DC

20591 (Attn: ACO-310, Access Processing). A corporate check, certified

check, cashier's check or money order made payable to the ``U.S. FAA''

for $24.00 per card must accompany the request.

The FAA will verify that the information required on the

fingerprint cards is complete and forward the cards for processing.

After the FBI completes the search of its index system, the FAA will

receive the results and, in turn, will forward the results to the

airport operator. Under this system, the airport operator will receive

complete results of the check.

Section 107.31(j)--Making the Access Determination

Six commenters raise concerns over the airport operator or the air

carrier being responsible for resolving any arrests for disqualifying

crimes that have no disposition listed on the FBI criminal history

records check result. ATA and RAA also suggest that the individual

seeking employment should be responsible for furnishing any required

disposition documentation.

FAA Response: This final rule requires the airport operator to

ascertain the disposition of arrests for any of the enumerated offenses

when no disposition has been recorded in the FBI's records, e.g., the

case is pending or the FBI has no record. This task would be conducted

with the affected individual and the jurisdiction where the arrest took

place in order to determine whether a disposition has been recorded in

that jurisdiction but not forwarded to the FBI. While the investigation

will require assistance from the individual, it is the responsibility

of the airport operator or the air carrier to complete the

investigation. In determining whether to grant unescorted access to an

individual with an arrest for one of the disqualifying crimes with no

disposition, the airport operator should weigh all relevant information

available on the individual, including the results of the access

investigation.

Section 107.31(k)--Availability and Correction of FBI Records and

Notification of Disqualification

Two commenters state that allowing applicants to challenge the

accuracy of the FBI record will require involvement by the airport

operator in a possibly lengthy and expensive process.

FAA Response: The Act requires that individuals have the right to

challenge the accuracy of their criminal history record. While such a

challenge may be a time consuming process, the FAA has no discretion to

eliminate this right. This rule does require the individual to notify

the airport operator or its designee within 30 days of receipt of the

record of his or her intent to correct any information believed to be

inaccurate. Because the FBI maintains the records and has established

procedures to address possible inaccuracies, it is appropriate to

forward a copy of any requests for correction to the FBI. However, the

FBI prefers that the actual request be made by the individual directly

to the agency (i.e., federal, state or local jurisdiction) that

supplied the questioned criminal history information to the FBI.

When taking the individual's fingerprints, the airport operator

must notify the individual that he or she will be provided, upon

written request, a copy of the results of the FBI criminal history

records check prior to rendering the access decision.

If the airport operator is not notified by the individual within

the 30-day period that he or she intends to dispute the results, the

airport operator may make the final access decision. The airport

operator is neither obligated to provide the individual with an escort

before the correction (if any) is made, nor is the employer obligated

to hire the applicant after the record is corrected. However, after

being informed that the disqualifying information has been corrected,

the airport operator would have to obtain a copy of the revised FBI

record before the individual could be authorized for unescorted access.

If an individual is disqualified for unescorted access privileges

based on the findings of the criminal history record check, the

individual must be notified that such a determination has been made.

Section 107.31(1)--Individual Accountability

Two commenters address the issue requiring an individual with

unescorted access authority to report any disqualifying convictions

occurring after the completion of the employment investigation. One

commenter concurs with the decision not to require a recurrent

investigation and another states that the SNPRM did not adequately

address the procedures that would apply in these cases.

FAA Response: This final rule adopts the ``self-disclosure''

provision included in the SNPRM. Any person holding unescorted access

authority who is convicted of any of the disqualifying crimes after

January 31, 1995, must surrender the identification media to the issuer

within 24 hours of learning of the conviction. This final rule does not

provide additional guidance on this

[[Page 51866]]

requirement. However, the FAA expects that the regulated parties will

develop local procedures to implement this provision. In such cases,

the employer is likely to be aware of the circumstances and take

immediate action to revoke the access authority.

Any individual failing to report a disqualifying conviction or to

surrender his or her SIDA identification credential issued under this

section is subject to possible FAA enforcement action, including civil

penalty liability.

Section 107.31(m)--Limits on Dissemination of Results

The FAA received no comments on this section.

Note: As required by the Act, this rule also includes limits on

the dissemination of the criminal history information. The FAA

limits distribution of such information to: (1) the individual to

whom the record pertains or someone authorized by that person; (2)

the airport operator; and (3) the individuals designated by the

Administrator, e.g., FAA special agents.

Section 107.31(n)--Recordkeeping

Six commenters address the requirements for maintaining records.

ATA requests that the final rule clearly require maintaining only that

information necessary to satisfy the regulation requirements. ATA is

concerned that FAA inspectors may interpret the record provision as

providing discretion to require the maintenance of information beyond

that which is necessary to meet the requirements set forth in the

SNPRM.

Two airport operators express concerns over the administrative

burden of maintaining all employment history records of non-air-carrier

tenants. One commenter agrees that maintaining the criminal history

records checks is the airport operator's responsibility and that this

should not be a burden to airports because they already keep

confidential information.

FAA Response: The FAA has determined that the airport or air

carrier shall maintain a written record for individuals granted

unescorted access authority that includes specific information on the

employment history verification and the results of an FBI criminal

history records check, if conducted. The burden on airport operators to

maintain records for tenants already exists because airport operators

maintain records for individuals who are currently issued

identification media. This rule standardizes the information to be

maintained to include the results of the FBI criminal history records

check, where applicable. The airport tenant can continue to maintain

the more comprehensive record and associated paperwork of the

employment history verification.

The FAA has modified this section from that proposed in the SNPRM

to clarify that an airport operator need not maintain comprehensive

records and documentation for air carrier employees. As discussed under

Sec. 107.31(f), the record can be a certification from the air carrier

that the access investigation was performed. The airport operator would

have no further recordkeeping requirements related to air carrier

employees. Furthermore, in order to permit the destruction of FBI

criminal history records check results and minimize storage problems

for airport operators and air carriers, the recordkeeping requirements

allow for the retention of only a certification that the check was

completed and revealed no disqualifying convictions. Another minor

editorial change in this regard was the deletion of the reference to

airport tenants providing certification of criminal history records

check results since these parties are not authorized to request such

checks.

This final rule contains two recordkeeping requirements: (1) A

record indicating that the applicant's 10-year employment history has

been reviewed and the most recent 5-year employment history verified,

and (2) a copy of the results of the criminal history record check

received from the FBI or certification of same, where appropriate. The

airport operator can accept written certification from airport tenants

that the employment history was reviewed and the verification was

performed. However, the airport tenant should maintain a record of

calls made, plus a record of correspondence or any other documents

received. The tenant must make this information available to the

airport operator when requested by the FAA for inspection purposes.

For individuals subject to a criminal history records check, the

records received from the FBI must be maintained in a manner that

prevents the unauthorized dissemination of its contents.

The airport operator must maintain a written record until 180 days

after termination of the individual's authority.

Section 108.33--Employment Verification

This rule authorizes air carriers to perform the access

investigations for its employees and contractors in a manner similar to

that required under Sec. 107.31. The air carrier may provide a general

certification to an airport operator under Sec. 107.31(f) that the

access investigation was performed as part of issuing identification

credentials to its employees. When an individual air carrier employee

or its contractor employee is investigated by the carrier for receipt

of airport-issued identification media, the air carrier must provide

the airport operator with certification that the investigation was

performed for each employee.

The requirements for an air carrier performing the access

investigation are identical to those required of an airport operator.

Regulatory Evaluation Summary

Changes to Federal regulations are required to undergo several

economic analyses. First, Executive Order 12866 directs each Federal

agency to propose or adopt a regulation only upon a reasoned

determination that the benefits of the intended regulation justify its

costs. Second, the Regulatory Flexibility Act of 1980 requires agencies

to analyze the economic effect of regulatory changes on small entities.

Third, the Office of Management and Budget directs agencies to assess

the effect of regulatory changes on international trade. With respect

to this rule, the FAA has determined that it: (1) is ``a significant

regulatory action'' as defined in section 3 (f)(4) of the Executive

Order; (2) is significant as defined in the Department of

Transportation's Regulatory Policies and Procedures; (3) will not have

a significant impact on a substantial number of small entities; and (4)

will not constitute a barrier to international trade. Since the rule is

not significant under section 3 (f)(4) of the Executive Order, a full

regulatory analysis, which includes the identification and evaluation

of cost-reducing alternatives to this rule, has not been prepared.

Instead, the agency has prepared a more concise analysis of this rule

which is presented in the following paragraphs.

The expected costs of the rule consist of two parts: (1) the cost

of enhancing the employment history verification process; and (2) the

cost of conducting a criminal history records check on applicants whose

employment verification triggers it. Employers may avoid the latter

cost by simply choosing to end the employment process for the

individual in question.

First-year costs for the industry will range from $0.5 to $1.4

million. Airports, air carriers, and other airport tenants will incur

these costs. The cost of the rule comes from the time necessary to

complete an estimated 64,000 employment history verifications by non-

air-carrier airport tenants and from an estimated 970 to 1,940 criminal

[[Page 51867]]

history records checks by all airport and air carrier employers. The

FAA estimates that, in 1995, 194,000 employees will apply for

unescorted SIDA access privilege. Between 1995 and 2004, the total cost

of the new requirements will range from $6.2 to $16.2 million. The

discounted cost ranges from $4.3 to $11.1 million.

Because aviation security requires an intricate set of interlocking

measures, the benefits ascribed to this final rule derive from

strengthening the U.S. civil aviation security network. By enhancing

the civil aviation security network, this final rule decreases the

possibility that a deadly and costly terrorist or criminal act will

occur. This final rule assures a greater measure of safety through

tighter screening of individuals applying for jobs requiring unescorted

secure area access. Specifically, this final rule reduces the civil

aviation security risk by further assuring that persons who have

committed certain crimes do not have access to airport secure areas.

The FAA has determined that the final rule provides sufficient

additional security to make it cost beneficial.

The rule will have a negligible impact on international trade.

Also, the proposed regulatory action will not have a significant

economic impact on a substantial number of small entities.

Final Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (RFA) helps to assure that

Federal regulations do not overly burden small businesses, nonprofit

organizations, and small cities. The RFA requires regulatory agencies

to review rules which may have ``a significant economic impact on a

substantial number of small entities.'' A substantial number of small

entities, defined by FAA Order 2100.14A--``Regulatory Flexibility

Criteria and Guidance,'' is more than one-third, but not less than

eleven, of the small entities subject to the existing rule. To

determine if the rule will impose a significant cost impact on these

small entities, the annualized cost imposed on them must not exceed the

annualized cost threshold established in FAA Order 2100.14A.

Small entities potentially affected by the rule are small airports,

air carriers, fixed-base operators, and catering companies. However,

many of the requirements of the rule are already standard procedures

for some of these entities; and the cost of a criminal history records

check is minimal because so few employers are expected to utilize it

for their applicants. The FAA estimates the average cost of upgrading

an employee verification is $15.00. This estimate incorporates the cost

of a criminal history records checks.

Aircraft Repair Facilities: FAA Order 2100.14A defines small

aircraft repair facilities as those with 200 employees or less. The FAA

has estimated the cost threshold for small operators to be $4,130 in

1992 dollars. To exceed this threshold, a facility would have to hire

275 employees ($4,130/$15.00) per year. This means that the facility

would have to regularly employ 786 persons (assuming a 35 percent

turnover rate: 275/.35). If a firm employed that many people, it would

be a small entity since it is over the size threshold of 200 employees.

Caterers: The FAA evaluates small caterers as aircraft repair

facilities since FAA Order 2100.14A does not define a threshold for

caterers. This order defines the criteria as 200 employees or less for

the size threshold and $4,130 for the cost threshold. Hence, like the

aircraft repair facilities, in order to exceed the cost threshold,

caterers would have to employ 786 persons, which would exceed the size

threshold of 200 employees.

In conclusion, the rule will not impose a significant impact on a

substantial number of small entities.

Federalism Implications

This rule does not have a substantial direct effect on the states,

on the relationship between the national government and the states, or

on the distribution of power and responsibilities among the various

levels of government. Most airports covered by the rule are public

entities (state and local governments). However, relatively few of the

covered individuals are actually employed by the airport operator, and

most of the costs for the required investigations would be borne by the

airport tenants and air carriers. Thus, the overall impact is not

substantial within the meaning of Executive Order 12612. Therefore, in

accordance with that Executive Order, it is determined that this rule

would not have sufficient Federal implications to warrant the

preparation of a Federalism Assessment.

International Civil Aviation Organization and Joint Aviation

Regulations

In keeping with U.S. obligations under the Convention on

International Civil Aviation, it is FAA policy to comply with

International Civil Aviation Authority Standards and Recommended

Practices to the maximum extent practicable. The FAA is not aware of

any differences that this final rule will present.

Paperwork Reduction Act

Under the requirements of the Federal Paperwork Reduction Act, the

Office of Management and Budget has approved the information collection

burden for this rule under OMB Approval Number 2120-0564. For further

information contact: The Information Requirements Division, M-34,

Office of the Secretary of Transportation, 400 Seventh Street, SW.,

Washington, D.C., 20590, (202) 366-4375 or Edward Clarke or Wayne

Brough, Office of Management and Budget, New Executive Office Building,

Room 3228, Washington D.C., 20503, (202) 395-7340.

Conclusion

For the reasons discussed in the preamble, and based on the

findings in the Regulatory Flexibility Determination and the

International Trade Impact Analysis, the FAA has determined that this

rule is a significant regulatory action under Executive Order 12866.

This rule will not have a significant economic impact on a substantial

number of small entities under the criteria of the Regulatory

Flexibility Act but is considered significant under DOT Regulatory

Policies and Procedures (44 FR 11034; February 26, 1979). The

regulatory evaluation for this rule, including a Regulatory Flexibility

Determination and International Trade Impact Analysis, has been placed

in the docket. A copy may be obtained by contacting the person

identified under FOR FURTHER INFORMATION CONTACT.

List of Subjects in 14 CFR Parts 107 and 108

Air carriers, Air Transportation, Airlines, Airplanes operator

security, Aviation safety, Security measures, Transportation, Weapons.

The Rule Amendments

In consideration of the foregoing, the Federal Aviation

Administration amends parts 107 and 108 of the Federal Aviation

Regulations (14 CFR parts 107 and 108) as follows:

PART 107--AIRPORT SECURITY

1. The authority citation for Part 107 is revised to read as

follows:

Authority: 49 U.S.C. 106(g); 5103, 40113, 40119, 44701-44702,

44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.

2. In part 107, Sec. 107.1 paragraphs (b)(3) through (b)(5) are

redesignated as paragraphs (b)(4) through (b)(6), and

[[Page 51868]]

new paragraph (b)(3) is added to read as follows:

Sec. 107.1 Applicability and Definitions.

* * * * *

(b) * * *

(3) Escort means to accompany or supervise an individual who does

not have unescorted access authority to areas restricted for security

purposes, as identified in the airport security program, in a manner

sufficient to take action should the individual engage in activities

other than those for which the escorted access is granted. The

responsive actions can be taken by the escort or other authorized

individual.

* * * * *

3. Part 107 is amended by adding a new Sec. 107.31 to read as

follows:

Sec. 107.31 Access Investigation

(a) On or after January 31, 1996, this section applies to all

individuals seeking authorization for, or seeking authority to

authorize others to have, unescorted access privileges to the security

identification display area (SIDA) that is identified in the airport

security program as defined by Sec. 107.25.

(b) Except as provided in paragraph (e) of this section, each

airport operator must ensure that no individual is granted

authorization for, or is granted authority to authorize others to have,

unescorted access to the area identified in paragraph (a) of this

section unless:

(1) The individual has satisfactorily undergone a review covering

the past 10 years of employment history and verification of the 5 years

preceding the date the access investigation is initiated as provided in

paragraph (c) of this section; and

(2) The results of the access investigation do not disclose that

the individual has been convicted or found not guilty by reason of

insanity, in any jurisdiction, during the 10 years ending on the date

of such investigation, of a crime involving any of the following crimes

enumerated in paragraphs (b)(2)(i) through (xxv) of this section. Where

specific citations are listed, both the current citation and the

citation that applied before the statutes are recodified in 1994 are

listed.

(i) Forgery of certificates, false making of aircraft, and other

aircraft registration violations, 49 U.S.C. 46306 [formerly 49 U.S.C.

App. 1472 (b)];

(ii) Interference with air navigation, 49 U.S.C. 46308, [formerly

49 U.S.C. App 1472 (c)];

(iii) Improper transportation of a hazardous material, 49 U.S.C.

46312, [formerly 49 U.S.C. App 1472(b)(2)];

(iv) Aircraft piracy, 49 U.S.C. 46502, [formerly 49 U.S.C. App

1472(i);

(v) Interference with flightcrew members or flight attendants, 49

U.S.C. 46504, [formerly 49 U.S.C. App 1472(j)];

(vi) Commission of certain crimes aboard aircraft in flight, 49

U.S.C. 46506, [formerly 49 U.S.C. App 1472(k)];

(vii) Carrying a weapon or explosive aboard an aircraft, 49 U.S.C.

46505 [formerly 49 U.S.C. App 1472(l)];

(viii) Conveying false information and threats, 49 U.S.C. 49 46507

[formerly 49 U.S.C. App 1472 (m)];

(ix) Aircraft piracy outside the special aircraft jurisdiction of

the United States, 49 U.S.C. 46502(b), [formerly 49 U.S.C. App

1472(n)];

(x) Lighting violations involving transporting controlled

substances, 49 U.S.C. 46315, [formerly 49 U.S.C. App 1472(q)];

(xi) Unlawful entry into an aircraft or airport area that serves

air carriers or foreign air carriers contrary to established security

requirements, 49 U.S.C. 46314, [formerly 49 U.S.C. App 1472(r)];

(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C.

32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

(xx) Unlawful possession, use, sale, distribution, or manufacture

of an explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

(xxiii) Distribution of, or intent to distribute, a controlled

substance;

(xxiv) Felony arson; or

(xxv) Conspiracy or attempt to commit any of the aforementioned

criminal acts.

(c) The access investigation must include the following steps:

(1) The individual must complete an application form that includes:

(i) The individual's full name, including any aliases or nicknames;

(ii) The dates, names, phone numbers, and addresses of previous

employers, with explanations for any gaps in employment of more than 12

months, during the previous 10-year period;

(iii) Notification that the individual will be subject to an

employment history verification and possibly a criminal history records

check; and

(iv) Any convictions during the previous 10-year period of the

crimes listed in paragraph (b)(2) of this section.

(2) The identity of the individual must be verified through the

presentation of two forms of identification, one of which must bear the

individual's photograph.

(3) The information on the most recent 5 years of employment

history required under paragraph (c)(1)(ii) of this section must be

verified in writing, by documentation, by telephone, or in person.

(4) If one or more of the following conditions exists, the access

investigation must not be considered complete unless it includes a

check of the individual's fingerprint-based criminal history record

maintained by the Federal Bureau of Investigation (FBI). The airport

operator may request a check of the individual's fingerprint-based

criminal history record only if one or more of the following conditions

exists:

(i) The individual cannot satisfactorily account for a period of

unemployment of 12 months or more during the previous 10-year period;

(ii) The individual is unable to support statements made or there

are significant inconsistencies between information provided on the

application in response to questions required by paragraph (c)(1)(ii)

of this section and that obtained through the 5-year verification

process; or

(iii) Information becomes available to the airport operator during

the access investigation indicating a possible conviction for one of

the disqualifying crimes.

(d) An airport operator may permit an individual to be under escort

as defined in Sec. 107.1 in accordance with the airport security

program to the areas identified in paragraph (a) of this section.

(e) Notwithstanding the requirements of this section, an airport

operator may authorize the following individuals to have unescorted

access to the areas identified in paragraph (a) of this section:

(1) Employees of the Federal government or a state or local

government (including law enforcement officers) who, as a condition of

employment, have been subject to an employment investigation;

(2) Crew members of foreign air carriers covered by an alternate

security arrangement in the approved airport operator security program;

(3) An individual who has been continuously employed in a position

requiring unescorted access by another airport operator, airport tenant

or air carrier; and

(4) An individual who has access authority to the U.S. Customs

Service security area of the U.S. airport.

(f) An airport operator will be deemed to be in compliance with its

obligations under paragraphs (b)(1) and (b)(2) of this section, as

applicable, when it accepts certification from:

[[Page 51869]]

(1) An air carrier subject to Sec. 108.33 of this chapter that the

air carrier has complied with Sec. 108.33 (a)(1) and (a)(2) for its

employees and contractors; and

(2) An airport tenant other than a U.S. air carrier that the tenant

has complied with paragraph (b)(1) of this section for its employees.

(g) The airport operator must designate the airport security

coordinator to be responsible for:

(1) Reviewing and controlling the results of the access

investigation; and

(2) Serving as the contact to receive notification from an

individual applying for unescorted access of his or her intent to seek

correction of his or her criminal history record with the FBI.

(h) Prior to commencing the criminal history records check, the

airport operator must notify the affected individuals.

(i) The airport operator must collect and process fingerprints in

the following manner:

(1) One set of legible and classifiable fingerprints must be

recorded on fingerprint cards approved by the FBI for this purpose;

(2) The fingerprints must be obtained from the individual under

direct observation by the airport operator;

(3) The identity of the individual must be verified at the time

fingerprints are obtained. The individual must present two forms of

identification media, one of which must bear his or her photograph;

(4) The fingerprint card must be forwarded to Federal Aviation

Administration, 800 Independence Ave., S.W., Washington, D.C. 20591

(ATTN: ACO-310, Access Processing); and

(5) Fees for the processing of the criminal checks are due upon

application. Airport operators shall submit payment through corporate

check, cashier's check or money order made payable to ``U.S. FAA,'' at

the rate of $24.00 for each fingerprint card. Combined payment for

multiple applications is acceptable.

(j) In conducting the criminal history records check required by

this section, the airport operator must ascertain information on

arrests for the crimes listed in paragraph (b)(2) of this section for

which no disposition has been recorded to make a determination of the

outcome of the arrest.

(k) The airport operator must:

(1) At the time the fingerprints are taken, notify the individual

that a copy of any criminal history record received from the FBI will

be made available if requested in writing.

(2) Prior to making a final decision to deny authorization for

unescorted access, advise the individual that the FBI criminal history

record discloses information that would disqualify him or her from

unescorted access authorization and provide each affected individual

with a copy of his or her FBI record if it has been requested. The

individual may contact the local jurisdiction responsible for the

information and the FBI to complete or correct the information

contained in the record before any final access decision is made,

subject to the following conditions:

(i) Within 30 days after being advised that the FBI criminal

history record discloses disqualifying information, the individual must

notify the airport operator, in writing, of his or her intent to

correct any information believed to be inaccurate. If no notification

is received within 30 days, the airport operator may make a final

access decision.

(ii) Upon notification by the individual that a record has been

corrected, the airport operator must obtain a copy of the revised FBI

record prior to making a final access decision.

(3) Notify an individual that a final decision has been made to

grant or deny authorization for unescorted access.

(l) Any individual authorized to have unescorted access privilege

to the areas identified in paragraph (a) of this section who is

subsequently convicted of any of the crimes listed in paragraph (b)(2)

of this section must report the conviction and surrender the SIDA

identification medium within 24 hours to the issuer.

(m) Criminal history record information provided by the FBI must be

used solely for the purposes of this section, and no person shall

disseminate the results of a criminal history records check to anyone

other than:

(1) The individual to whom the record pertains or that individual's

authorized representative;

(2) The airport operator; or

(3) Others designated by the Administrator.

(n) The airport must maintain a written record for each individual

until 180 days after the termination of the individual's authority for

unescorted access. The records for each individual subject to:

(1) The access investigation must include: the application, the

employment verification information obtained by the employer, the names

of those from whom the employment verification information was

obtained, the date the contact was made, or certification of same from

air carriers or airport tenants, and any other information as required

by the Assistant Administrator for Civil Aviation Security, and

(2) A criminal history records check must include the results of

the records check, or a certification by the airport operator or air

carrier that the check was completed and did not uncover a

disqualifying conviction. These records must be maintained in a manner

that protects the confidentiality of the employee, which is acceptable

to the Assistant Administrator for Civil Aviation Security.

PART 108--AIRPLANE OPERATOR SECURITY

4. The authority citation for Part 108 is revised to read as

follows:

Authority: 49 U.S.C. 106(g), 40101, 40102, 40113, 40119, 44701-

44713, 44901-44915, 44931-44937, 46105.

5. Part 108 is amended by adding a new Sec. 108.33 to read as

follows:

Sec. 108.33 Access investigation.

(a) On or after January 31, 1996 for each employee or contractor

employee covered under a certification made to an airport operator

pursuant to Sec. 107.31(f) of this chapter, the certificate holder must

ensure that:

(1) The individual has satisfactorily undergone an employment

history review covering the past 10 years and verification of the 5

years preceding the date the access investigation is initiated as

provided in paragraph (b) of this section; and

(2) The results of the access investigation do not disclose that

the individual has been convicted or found not guilty by reason of

insanity, in any jurisdiction, during the 10 years ending on the date

of such investigation, of a crime involving any of the following crimes

enumerated in paragraphs (b)(2) (i) through (xxv) of this section.

Where specific citations are listed, both the current citation and the

citation that applied before the statutes are recodified in 1994 are

listed.

(i) Forgery of certificates, false marking of aircraft, and other

aircraft registration violation, 49 U.S.C. 46306 [formerly 49 U.S.C.

App. 1472(b)];

(ii) Interference with air navigation, 49 U.S.C. 46308, [formerly

49 U.S.C. App 1472(c)];

(iii) Improper transportation of a hazardous material, 49 U.S.C.

46312, [formerly 49 U.S.C. App 1472(b)(2)];

(iv) Aircraft piracy, 49 U.S.C. 46502, [formerly 49 U.S.C. App

1472(i)];

(v) Interference with flightcrew members or flight attendants, 49

U.S.C. 46504, [formerly 49 U.S.C. App 1472(j)];

(vi) Commission of certain crimes aboard aircraft in flight, 49

U.S.C.

[[Page 51870]]

46506, [formerly 49 U.S.C. App 1472(k)];

(vii) Carrying a weapon or explosive aboard aircraft, 49 U.S.C.

46505 [formerly 49 U.S.C. App 1472(l)];

(viii) Conveying false information and threats, 49 U.S.C. 49 46507

[formerly 49 U.S.C. App 1472(m)];

(ix) Aircraft piracy outside the special aircraft jurisdiction of

the United States, 49 U.S.C. 46502(b), [formerly 49 U.S.C. App

1472(n)];

(x) Lighting violations in connection with transportation of

controlled substances, 49 U.S.C. 46315, [formerly 49 U.S.C. App

1472(q)];

(xi) Unlawful entry into an aircraft or airport area that serves

air carriers or foreign air carriers contrary to established security

requirements, 49 U.S.C. 46314, [formerly 49 U.S.C. App 1472(r)];

(xii) Destruction of an aircraft or aircraft facility, 18 U.S.C.

32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

(xx) Unlawful possession, use, sale, distribution, or manufacture

of an explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

(xxiii) Distribution of, or intent to distribute, a controlled

substance;

(xxiv) Felony arson; or

(xxv) Conspiracy or attempt to commit any of the aforementioned

criminal acts.

(b) The access investigation must include the following steps:

(1) The individual must complete an application form that includes:

(i) The individual's full name, including any aliases or nicknames;

(ii) The dates, names, phone numbers, and addresses of previous

employers, with explanations for any gaps in employment of more than 12

months, during the previous 10-year period;

(iii) Notification that the individual will be subject to an

employment history verification and possibly a criminal history records

check; and

(iv) Any convictions during the previous 10-year period for the

crimes listed in paragraph (a)(2) of this section.

(2) The identity of the individual must be verified through the

presentation of two forms of identification, one of which must bear the

individual's photograph.

(3) The information on the most recent 5 years of employment

history required under paragraph (b)(1)(ii) of this section must be

verified in writing, by documentation, by telephone, or in person.

(4) If one or more of the following conditions exists, the access

investigation must not be considered complete unless it includes a

check of the individual's fingerprint-based criminal history record

maintained by the Federal Bureau of Investigation (FBI). The airport

operator may request a check of the individual's fingerprint-based

criminal history record only if one or more of the following conditions

exists:

(i) The individual cannot satisfactorily account for a period of

unemployment of 12 months or more during the previous 10-year period;

(ii) The individual is unable to support statements made or there

are significant inconsistencies between information provided on the

application in response to questions required by paragraph (b)(1)(ii)

of this section and that which is obtained through the 5-year

verification process; or

(iii) Information becomes available to the certificate holder

during the access investigation indicating a possible conviction for

one of the disqualifying crimes.

(c) The certificate holder must designate an individual to be

responsible for:

(1) Reviewing and controlling the results of the access

investigation; and

(2) Serving as the contact to receive notification from an

individual applying for unescorted access of his or her intent to seek

correction of his or her criminal history record with the FBI.

(d) Prior to commencing the criminal history records check, the

certificate holder must notify the affected individuals.

(e) The certificate holder must collect and process fingerprints in

the following manner:

(1) One set of legible and classifiable fingerprints must be

recorded on fingerprint cards approved by the FBI;

(2) The fingerprints must be obtained from the individual under

direct observation by the certificate holder;

(3) The identity of the individual must be verified at the time

fingerprints are obtained. The individual must present two forms of

identification media, one of which must bear his or her photograph; and

(4) The fingerprint card must be forwarded to Federal Aviation

Administration, 800 Independence Ave, S.W., Washington, D.C. 20591

(ATTN: ACO-310, Access Processing) and

(5) Fees for the processing of the criminal checks are due upon

application. Air carriers shall submit payment through corporate check,

cashier's check or money order made payable to ``U.S. FAA,'' at the

rate of $24.00 for each fingerprint card. Combined payment for multiple

applications is acceptable.

(f) In conducting the criminal history records check required by

this section, the certificate holder must investigate arrest

information for the crimes listed in paragraph (a)(2) of this section

for which no disposition has been recorded to make a determination of

the outcome of the arrest.

(g) The certificate holder must:

(1) At the time the fingerprints are taken, notify the individual

that a copy of the criminal history record received from the FBI will

be made available if requested in writing.

(2) Prior to making a final decision to deny authorization for

unescorted access, advise the individual that the FBI criminal history

record discloses information that would disqualify him or her from

unescorted access authorization and provide each affected individual

with a copy of his or her FBI record. The individual may contact the

local jurisdiction responsible for the information and the FBI to

complete or correct the information contained in the record before any

final access decision is made, subject to the following conditions:

(i) Within 30 days after being advised that the criminal history

record received from the FBI discloses disqualifying information, the

individual must notify the certificate holder, in writing, of his or

her intent to correct any information believed to be inaccurate. If no

notification is received within 30 days, the certificate holder may

make a final access decision.

(ii) Upon notification by the individual that the record has been

corrected, the certificate holder must obtain a copy of the revised

record from the FBI prior to making a final access decision.

(3) Notify an individual that a final decision has been made to

grant or deny authority for unescorted access.

(h) Any individual authorized to have unescorted access privilege

to areas identified in Sec. 107.31(a) of this chapter, who is

subsequently convicted of any of the crimes listed in paragraph (a)(2)

of this section, must report the conviction and surrender the SIDA

identification medium within 24 hours to the issuer.

(i) Criminal history record information provided by the FBI must be

used solely for the purposes of this section, and no person shall

disseminate the results of a criminal history records check to anyone

other than:

[[Page 51871]]

(1) The individual to whom the record pertains or that individual's

authorized representative;

(2) The certificate holder; or

(3) Others designated by the Administrator.

(j) The certificate holder must maintain a written record that the

investigation was conducted for the individual until 180 days after the

termination of the individual's authority for unescorted access. The

record for individuals subject to:

(1) The access investigation must include the application, the

employment verification information obtained by the employer, the names

of those from whom the employment verification information was

obtained, the date the contact was made, and any other information as

required by the Assistant Administrator for Civil Aviation Security,

and

(2) A criminal history records check must include the results of

the records check or certification by the air carrier that a check was

completed and did not uncover a disqualifying conviction. These records

must be maintained in a manner that protects the confidentiality of the

employee, which is acceptable to the Assistant Administrator for Civil

Aviation Security.

Issued in Washington, DC, on September 26, 1995.

David R. Hinson,

Administrator.

[FR Doc. 95-24546 Filed 9-28-95; 3:10 pm]

BILLING CODE 4910-13-M