Falsification of Security Records

SUMMARY: The FAA is adopting rules that prohibit fraudulent or

intentionally false statements in certain security records. This action

responds to recent events indicating that persons may be making such

statements in security records. This action is intended to provide a

means for the FAA to take legal enforcement action against persons who

make such statements, and thereby enhance the security of civil

aviation.

DATES: Effective date November 27, 1996. Comments must be received by

January 23, 1997.

ADDRESSES: Comments on this rule should be submitted in triplicate to:

Federal Aviation Administration, Office of the Chief Counsel, Attn:

Rules Docket (AGC-200), Room 915-G, Docket No. 28745, 800 Independence

Ave., SW, Washington, DC 20591. Comments must be marked Docket No.

28745. Comments also may be submitted electronically to the following

Internet address: [email protected]. Comments may be examined in

room 915G weekdays between 8:30 a.m. and 5 p.m. except on Federal

holidays.

FOR FURTHER INFORMATION CONTACT: Robert Cammaroto and Linda C.

Valencia, Office of Civil Aviation Security Policy and Planning, Civil

Aviation Security Division, ACP-100, Federal Aviation Administration,

800 Independence Avenue, SW., Washington, DC 20591, telephone (202)

267-3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in this rulemaking by

submitting such written data, views, or arguments as they may desire.

Comments relating to the environmental, energy, federalism, or economic

impact that might result from this rule are also invited. Substantive

comments should be accompanied by cost estimates. Comments must

identify the regulatory docket and be submitted in triplicate to the

Rules Docket address specified above.

Except as noted below, all comments received, as well as a report

summarizing each substantive public contact with FAA personnel on this

rulemaking, will be filed in the docket. The docket is available for

public inspection before and after the comment closing date.

All comments received on or before the closing date will be

considered by the Administrator. Late-filed comments will be considered

to the extent practicable. The rule may be changed in light of the

comments received.

Commenters wishing the FAA to acknowledge receipt of their comments

submitted in response to this notice must include a pre-addressed,

stamped postcard with those comments on which the following statement

is made: ``Comments to Docket No. 28745.'' The postcard will be date

stamped and mailed to the commenter.

Background

It has recently come to the FAA's attention that persons may be

submitting fraudulent or intentionally false statements in records used

to obtain identification media from an airport operator that provides

unescorted access to security identification display areas (SIDA's) on

airports, and in other required records.

Part 107 of Title 14, Code of Federal Regulations, sets forth the

requirements for airport security. Identification media must be worn at

all times in the SIDA by all persons with unescorted access authority.

The SIDA includes the most security-sensitive portions of the airport,

including the areas immediately next to the terminals in which air

carrier aircraft board and off-load passengers.

Section 107.31 requires that an access investigation be conducted

for each person applying for unescorted access privileges to the SIDA.

This investigation involves the completion of an application by the

individual that requires various information, including a ten-year

employment history. The most recent five years of employment must be

verified. In specified circumstances the applicant's fingerprint must

be obtained and an FBI criminal history records check must be

conducted. The airport may not grant unescorted access to the SIDA for

any person until the access investigation is completed and must deny

unescorted access to any person who has one or more of the specified

criminal convictions within the previous ten years.

Under Sec. 107.31(f) the airport operator is deemed in compliance

with Sec. 107.31 if it accepts a certification from an air carrier that

the air carrier has complied with 14 CFR Sec. 108.33. (14 CFR Part 108

contains the security requirements for air carriers.) Section 108.33

provides for the same application, verification, and criminal records

check process to be carried out by the air carrier. Air carriers are

directly regulated by the FAA, and the FAA monitors their compliance

with part 108.

Section 107.31(f) also provides that the airport operator is deemed

in compliance if it accepts certification from an airport tenant, other

than an air carrier, that the tenant has complied with

Sec. 107.31(b)(1) for its employees, unless a criminal history records

check is required. Tenants are not directly regulated by the FAA, and

the FAA has relied upon good faith adherence to the access

investigation process to ensure that the appropriate security measures

are carried out.

The FAA has recently determined that some tenants have submitted

certifications to airport operators without having performed the

required verification of the applicant's employment history. This leads

the airport operator to issue identification media that permit

unescorted access to the SIDA when the tenant has not verified prior

employment or established that the applicants have no prohibited

criminal convictions.

Further, the FAA has determined that there may be some fraudulent

or intentionally false records of required screener training. These

records are essential to the FAA's and the air carriers' monitoring of

screener training. This training is essential to the effective

detection of weapons and explosive devices to prevent their being

placed aboard aircraft. Training and screening may be conducted by air

carrier employees, or by a contractor of an air carrier.

Good Cause Justification for Immediate Adoption and No Notice

The FAA finds that good cause exists for issuing this final rule

without prior notice and opportunity for comment. Prior notice is

impracticable, unnecessary, and contrary to public interest.

It is impracticable to provide prior notice because the FAA would

be prevented from adequately and immediately protecting persons

traveling in air transportation through prohibiting the submission of

fraudulent or intentionally false records for persons who directly

carry out required security measures. Prior notice is unnecessary

because these rules prohibit practices--fraud and intentional

falsification--that

[[Page 64243]]

long have been understood by the public and the industry to be

improper, and that may constitute criminal violations. No one has a

right or justification to intentionally falsify records required by

Federal regulation.

Prior notice would be contrary to public interest in that it would

delay the FAA's ability to take action against those who make

fraudulent or intentionally false statements in security records.

Failure of the FAA to act now may cause a continuing security risk. By

acting immediately, the FAA is providing additional deterrence to those

who may falsify security records. It is in the public interest to make

clear that such activities will not be tolerated and may be met with

legal enforcement action.

For the same reasons, these rules are effective immediately. It

must be clear that no intentional falsification of security records

will be tolerated and the additional security afforded the traveling

public should not be delayed.

Discussion of the Rules

The FDA is adopting new Secs. 107.2 and 108.4. These rules

specifically prohibit a person from making any fraudulent or

intentionally false statement or entry on any security program, record,

application, report, access or identification medium, or any other

document that is kept, made, or used to show compliance under parts 107

or 108.

It is important that all such records be accurate. They are used to

ensure that all required security measures have been carried out.

Fraudulent or intentionally false records may conceal a significant

security risk that should be addressed immediately.

Fraud or intentional falsification of required records may also be

a violation of certain criminal statutes. These rules provide a civil

enforcement remedy where appropriate.

These rules are modeled on similar provisions elsewhere in 14 CFR,

such as Secs. 21.2, 43.12, 61.59, and 65.20. These provisions have long

been in the regulations and have worked well. An intentionally false

statement consists of (1) a false representation, (2) in reference to a

material fact, (3) made with knowledge of its falsity. A fraudulent

statement consists of these three elements, plus (4) it was made with

the intent to deceive, and (5) action was taken in reliance upon the

representation. See, Hart v. McLucus, 535 F.2d 516, 519 (9th Cir.

1976). There have been many cases under the existing rules interpreting

these terms, which will assist in understanding these rules.

These rules apply to all ``persons.'' Under 14 CFR Sec. 1.1,

``person'' means an individual, firm, partnership, corporation,

company, association, joint-stock association, or governmental entity.

Thus, a company that is a tenant on an airport, or a company that

contracts with an air carrier to provide screening services, is a

person within the meaning of the rule. In the case of an intentionally

false certification made by a tenant, potentially both the tenant and

the individual making the certification could be held in violation of

Sec. 107.2.

Related Activity

The FAA is investigating the alleged incidents of false records,

and in conducting audits to determine the extent of the problem. The

FAA intends to raise this issue with airport consortia. The FAA is

considering what additional regulatory action may be advisable in the

future.

Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.

3507(d)), there are no requirements for information collection

associated with this final rule.

International Compatibility

The FAA has reviewed corresponding International Civil Aviation

Organization international standards and recommended practices and

Joint Aviation Airworthiness Authorities requirements and has

identified no differences in these amendments and the foreign

regulations.

Regulatory Evaluation

Executive Order 12866 directs that each Federal agency shall

propose or adopt a regulation only upon a reasoned determination that

the benefits of the intended regulation justify its costs. In

conducting the evaluation reflected in this document, the FAA has

determined that this rule is not ``a significant regulatory action'' as

defined in the Executive Order and the Department of Transportation

Regulatory Policies and Procedures. The FAA invites the public to

provide comments, and supporting data, on these determinations. All

comments received will be considered.

Air carriers and airports have security programs which are intended

to protect the public from the threat of aircraft hijacking and other

criminal activities affecting air transportation. The FAA proposes to

strengthen the rules against the falsification of security documents.

Falsifying the information on such documents can have a detrimental

effect on the ability to thwart terrorist and other criminal

activities. The final rule will amend parts 107 and 108 to prevent such

activities.

The FAA has not identified any costs with this proposal. The

proposal does not obligate a person to take an action that is not

otherwise required. Enforcement actions may be taken by the FAA against

persons who violate the rules, at a cost to the agency, but the number

of cases cannot be determined. In addition, because this final rule

will not be included in the airport or the air carrier security

programs, affected entities will not incur any costs to implement these

proposed requirements.

The primary benefit of this rule is to deter falsification of

important security records. It also provides the FAA with a compliance

tool in the event that a person intentionally falsifies a security

record in violation of the rule. The FAA cannot quantify the security

benefits of this rule, but believes that this action will significantly

enhance civil aviation security by increasing the reliability and

integrity of security records.

Much of the effectiveness of the air carriers' and airports'

security programs depends on strictly limiting access to the SIDA.

Sophisticated criminal elements are actively seeking ways to gain

access to the SIDA, and it is important that the FAA, air carriers, and

airports guard against such terrorist activities. The consequences of

not protecting such access can be catastrophic. Between 1982 and 1991,

terrorist bombings of U.S. air carriers have resulted in 275 deaths and

24 injuries, while hijackings incidents have resulted in 24 deaths and

127 injuries.

Given the lack of cost and given the potential benefits of avoided

fatalities and injuries, this evaluation finds this final rule cost

beneficial.

Regulatory Flexibility Determination

The Regulatory Flexibility Act (RFA) of 1980 was enacted by

Congress to ensure that small entities are not unnecessarily or

disproportionately burdened by Government regulations. The RFA requires

a Regulatory Flexibility Analysis if a rule has a significant economic

impact on a substantial number of small business entities. FAA Order

2100.14A, Regulatory Flexibility Criteria and Guidance, established

threshold costs and small entity size standards for complying with RFA

requirements. As was discussed above, there is no cost associated with

this rule. Therefore, the FAA certifies that the rule does not have a

significant economic impact on a substantial number of small entities.

[[Page 64244]]

International Trade Impact Analysis

In accordance with the Office of Management and Budget memorandum

dated March 1983, federal agencies engaged in rulemaking activities are

required to assess the effects of regulatory changes on international

trade. The FAA finds that this final rule will not have an adverse

impact on trade opportunities for either U.S. firms doing business

overseas or foreign firms doing business in the United States. This

finding is based on the fact that this rule will impose no costs on

both domestic and foreign air carriers, so neither will have a trade

advantage over the other.

Federalism Implications

The regulations herein will not have substantial direct effects 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. Therefore, in accordance with Executive

Order 12612, it is determined that this rule will not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

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

regulation is not a ``significant regulatory action'' under Executive

Order 12866. In addition, the FAA certifies that this rule will not

have a significant economic impact, positive or negative, on a

substantial number of small entities under the criteria of the

Regulatory Flexibility Act. This rule is not considered significant

under Order DOT 2100.5, Policies and Procedures for Simplification,

Analysis, and Review of Regulations.

List of Subjects

14 CFR Part 107

Airports, Arms and munitions, Law enforcement officers, Reporting

and recordkeeping requirements, Security measures.

14 CFR Part 108

Air carriers, Aircraft, Airmen, Airports, Arms and munitions,

Explosives, Law enforcement officers, Reporting and recordkeeping

requirements, Security measures, X-rays.

The Amendment

In consideration of the foregoing, the Federal Aviation

Administration amends parts 107 and 108 of title 14, Code of Federal

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

PART 107--AIRPORT SECURITY

1. The authority citation for part 107 continues 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. Section 107.1 is amended by removing the ``and'' after paragraph

(a)(2), removing the period and adding in its place ``; and'' in

paragraph (a)(3), and adding paragraph (a)(4) to read as follows:

Sec. 107.1 Applicability and definitions.

(a) * * *

(4) Each person who files an application or makes entries into any

record or report that is kept, made, or used to show compliance under

this part, or to exercise any privileges under this part.

* * * * *

3. Section 107.2 is added to read as follows:

Sec. 107.2 Falsification.

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

(a) Any fraudulent or intentionally false statement in any

application for any security program, access medium, or identification

medium, or any amendment thereto, under this part.

(b) Any fraudulent or intentionally false entry in any record or

report that is kept, made, or used to show compliance with this part,

or exercise any privileges under this part.

(c) Any reproduction or alteration, for fraudulent purpose, of any

report, record, security program, access medium, or identification

medium issued under this part.

PART 108--AIRPLANE OPERATOR SECURITY

4. The authority citation for part 108 continues to read as

follows:

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

44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.

5. Section 108.1 is amended by removing the ``and'' after paragraph

(a)(2), removing the period and adding in its place a semi-colon in

paragraph (a)(3), removing the period and adding in its place a ``;

and'' in paragraph (a)(4), and adding paragraph (a)(5) to read as

follows:

Sec. 108.1 Applicability.

(a) * * *

(5) Each person who files an application or makes entries into any

record or report that is kept, made or used to show compliance under

this part, or to exercise any privileges under this part.

* * * * *

6. Section 108.4 is added to read as follows:

Sec. 108.4 Falsification.

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

(a) Any fraudulent or intentionally false statement in any

application for any security program, access medium, or identification

medium, or any amendment thereto, under this part.

(b) Any fraudulent or intentionally false entry in any record or

report that is kept, made, or used to show compliance with this part,

or to exercise any privileges under this part.

(c) Any reproduction or alteration, for fraudulent purpose, of any

report, record, security program, access medium, or identification

medium issued under this part.

Issued in Washington, DC, on November 27, 1996.

Linda Hall Daschle,

Acting Administrator.

[FR Doc. 96-30776 Filed 11-27-96; 3:23 pm]

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