Aircraft Operator Security
Federal RegisterAug 1, 1997
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 108
[Docket No. 28978; Notice No. 97-12]
RIN 2120-AD-45
Aircraft Operator Security
AGENCY: Federal Aviation Administration, DOT.
ACTION: Notice of Proposed Rulemaking (NPRM).
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SUMMARY: This notice proposes to amend the existing airplane operator
security rules. It would revise certain applicability provisions,
definitions, and terms; reorganize these rules into subparts containing
related requirements; and incorporate some requirements already
implemented in air carrier approved security programs. Specifically,
this proposal would increase the number of air carriers that must have
security programs to include all that enplane from or deplane into a
sterile area. Further, it would clarify the following: Training
requirements for air carrier security personnel; procedures for
transporting passengers under armed escort; procedures for allowing law
enforcement personnel to fly armed; and procedures for air carriers to
acknowledge receipt of Federal Aviation Administration security
directives. It would require air carriers to implement and test
security contingency plans. As these rules should apply to operators of
rotorcraft as well as fixed-wing aircraft, this proposal would change
the title of these rules from ``Airplane Operator Security'' to
``Aircraft Operator Security.'' This proposal is intended to enhance
security for the traveling public, air carriers, and persons employed
by or conducting business at public airports by increasing awareness of
and compliance with civil aviation security measures.
DATES: Comments must be submitted on or before December 1, 1997.
ADDRESSES: Comments on this proposed rulemaking should be mailed or
delivered, in triplicate, to: Federal Aviation Administration, Office
of the Chief Counsel, Attention: Rules Docket (AGC-10), Room 915-G,
Docket No. 28978, 800 Independence Ave., SW., Washington, DC 20591.
Comments may also be sent electronically to the following internet
address: [email protected]. Comments may be examined in Room
915-G between 8:30 a.m. and 5 p.m. weekdays except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Office of Civil Aviation Security
Policy and Planning, Civil Aviation Security Division (ACP-100), Rhonda
Hatmaker, Federal Aviation Administration, 800 Independence Ave., 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 adopting the proposals in this document
are also invited. Substantive comments should be accompanied by cost
estimates. Comments should identify the regulatory docket or notice
number and be submitted in triplicate to the Rules Docket (see
ADDRESSES). All comments received on or before the closing date for
comments specified will be considered by the Administrator before
taking action on this proposed rulemaking. The proposals contained in
this document may be changed in light of comments received. Comments
received on this proposal will be available, both before and after the
closing date for comments, in the Rules Docket for examination by
interested persons. However, the Assistant Administrator has determined
that air carrier security programs required by part 108 contain
sensitive security information. As such, the availability of
information pertaining to airport security programs is governed by 14
CFR part 191 (Protection of Sensitive Information). A report
summarizing each substantive public contact with FAA personnel
concerned with this rulemaking will be filed in the docket. Commenters
wishing the FAA to acknowledge receipt of their comments must include a
self-addressed, stamped postcard on which the following statement is
made: ``Comments to Docket No. 28978.'' The postcard will be date-
stamped and mailed to the commenter.
Availability of NPM
Any person may obtain a copy of this NPRM by submitting a request
to the Federal Aviation Administration, Office of Rulemaking, ARM-1,
800 Independence Ave., SW., Washington, DC 20591, or by calling (202)
267-9677. Communications must identify the notice number of this NPRM.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the FAA regulations section
of the Fedworld electronic bulletin board service (telephone: 703-321-
3339) or the Federal Register's electronic bulletin board service
(telephone: 202-512-1661). Internet users may reach the FAA's webpage
at http://www.faa.gov or the Federal Register's Webpage at http://
www.access.gpo.gov/su__docs for access to recently published documents.
Persons interested in being placed on the mailing list for future
NPRM's should request from the above office a copy of Advisory Circular
No. 11-2A, Notice of Proposed Rulemaking Distribution System, which
describes the application procedure.
Background
This proposed rule was written before the tragic crash of TWA 800
on July 17, 1996. That accident raised concerns about the safety and
security of civil aviation, leading the President to create the White
House Commission on Aviation Safety and Security, headed by the Vice
President. The Commission issued an initial report on September 9,
1996, with 20 specific recommendations for improving security. On
February 12, 1997, The Commission issued its Final Report with 57
recommendations, 31 of which deal with improving security for
travelers. In addition, the Federal Aviation Reauthorization Act of
1996 (Pub. L. 104-264) was signed on October 9, 1996, and directs the
FAA to amend rules to upgrade civil aviation security.
The FAA is working to respond to the recommendations of the
Commission and to carry out the legislation, and has issued several
proposals. On March 11, 1997, an Advance Notice of Proposed Rulemaking
on the certification of screening companies was issued (62 FR 13262,
March 19, 1997), and on March 14, 1997, the FAA issued a Notice of
Proposed Rulemaking on employment history, verification and criminal
records checks (62 FR 13262, March 19, 1997). The rules proposed in
this notice were not written in response to these mandates. However,
this notice, which proposes to update the overall regulatory structure
for airport and air carrier security, is the result of a multi-year
effort involving the FAA, airports and air carriers, and the Aviation
Security Advisory Committee. The extensive proposed revisions are
considered to be consistent with the intentions of the mandates,
contain proposals that industry has identified as necessary or
appropriate, and outline a new organization for the regulations that
would assist in developing future changes to the rules. For these
reasons, the FAA is publishing this proposed
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rule for comment. The FAA anticipates that any final rule based on this
proposal will incorporate responses to these mandates.
Terrorist Incidents
On January 15, 1981, 14 Code of Federal Regulations (CFR) part 108
was issued to separate air carrier security requirements from part 121,
which contain general safety requirements for large transport category
aircraft. Historically, the threat of hijacking has been directed
toward large passenger-carrying aircraft. The security requirements
needed to protect those aircraft were placed in this new part 108 with
applicability to scheduled and public charter passenger operations.
Since its inception, part 108 has been amended on several
occasions, but the rule has never undergone a comprehensive update.
During this same period the threat has expanded beyond hijacking to
include methods of introducing bombs aboard aircraft. The following
incidents are indicative of this evolution:
--June 14, 1985: Trans World Airlines (TWA) Flight 847 was hijacked
from Athens, Greece. The hijacking lasted 17 days before the terrorists
released the aircraft and its remaining hostages in Beirut, Lebanon. A
U.S. Navy diver was killed by the hijackers.
--April 2, 1986: A bomb placed onboard TWA Flight 840 detonated en
route from Rome, Italy. Four passengers were killed but the aircraft
made a landing in Athens, Greece.
--May 30, 1986: Conspiracy to bomb an Air India jet. The Federal Bureau
of Investigation (FBI) and Canadian authorities uncovered a terrorist
conspiracy to bomb an Air India jet departing from JFK International
Airport. Five individuals were charged with sabotage, but only two were
convicted. These two individuals were sentenced to life imprisonment.
--September 5, 1986: Terrorist assault on Pan American (Pan Am) Flight
73, in Karachi, Pakistan as the aircraft waited to depart. The four
terrorists were dressed similar to airport security personnel and drove
a van resembling an airport vehicle alongside the aircraft. The
flightcrew was able to escape while the terrorists stormed the
aircraft. After 17 hours of negotiations, the aircraft's auxiliary
power unit failed. Anticipating an attack by security forces, the
terrorists opened fire on the massed passengers killing 22 persons and
injuring 125 others before security forces could intervene.
--November 29, 1987: Korean Airlines Flight 858. A bomb placed onboard
detonated over the Indian Ocean. All 115 persons aboard were killed.
--April 5, 1988: Kuwait Airways Flight 422 was hijacked en route from
Bangkok, Thailand. The hijackers finally left the aircraft 15 days
later in Algiers, Algeria, after the Kuwait government refused to
release prisoners in exchange for hostages. The hijackers had killed
two Kuwaiti passengers to emphasize their demands.
--December 21, 1988: The bombing of Pan Am Flight 103. All 243
passengers and 16 crew on board, plus 11 persons on the ground at
Lockerbie, Scotland, were killed. Subsequent inspection of the
reconstructed aircraft determined that a device consisting of plastic
explosives inside a tape cassette player, was concealed in checked
luggage. Individuals working for the Government of Libya are
responsible for the bombing. One conspirator was the former manager of
the Libyan Arab Airlines (LAA) office in Valletta, Malta and retained
full access to the airport. Using this access privilege and other
knowledge gained as representatives of LAA, the conspirators bypassed
security checks at Valletta's Luqa airport and inserted the suitcase
containing the bomb into baggage of an Air Malta flight to Frankfurt,
Germany.
--September 19, 1989: Union de Transports Aeriens (UTA) Flight 772 was
destroyed by an explosion over Niger, 10 months after the Pan Am
explosion over Lockerbie. All 171 persons on board were killed.
--November 27, 1989: A bomb placed in the cabin area onboard Avianca
Flight 203 detonated over Colombia, destroying the aircraft in-flight.
One hundred and seven passengers and crew were killed.
--December 11, 1994: Bombing of Philippine Flight 434. The bomb
detonated en route to Tokyo from Cebu. One passenger was killed.
Investigation of this act revealed an increased threat in early 1995 to
U.S. carriers operating in the Asia-Pacific region. Ramzi Ahmed Yousef
has been convicted of bombing Philippine Airline Flight 433 and for
conspiracy to bomb U.S. flag aircraft.
Terrorism has been, for the most part, a phenomenon afflicting U.S.
interests overseas, and the threat to U.S. civil aviation is assessed
to be higher abroad than it is domestically. The World trade Center
bombing in February 1993, however, indicates that terrorism is also a
very real threat in the United States, and may be on the rise.
Ramzi Ahmed Yousef has been convicted of the bombing of Philippine
Airline Flight 434 (December 11, 1994) and for conspiring to bomb U.S.-
flag aircraft. Authorities believe that Yousef and his co-conspirators,
acted on their own volition, in opposition to U.S. foreign policy in
the Middle East, and that they were assisted by local radical
sympathizers in the Philippines and the United States. Their
conspiracies are indicative of an emerging trend in terrorism
characterized by terrorist elements operating without traditional
organizational structure or state sponsorship.
The Federal Bureau of Investigation (FBI) characterizes such
terrorists as seeking a ``common political, social, economic, or
personal objective which transcends nation-state boundaries.'' The U.S.
Department of State, commenting on global terrorism trends notes that
``terrorism by extremist individuals or groups claiming to act for
religious motives'' continue to dominate international terrorism.\1\
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\1\ For further analysis of the terrorist threat, please refer
to the following public documents: Terrorism in the United States:
1994, U.S. Department of Justice, Federal Bureau of Investigation.
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The number of international terrorist attacks against US interests
fell between 1995 and 1996, although incidents involving American
targets still represented more than 24% of the total attacks worldwide
in 1996. Domestically, the FBI asserts that the U.S. is not immune to
international terrorism, describing the terrorist threat as ``real and
potentially lethal.'' The FAA views these developments as cause for
concern.\2\
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\2\ Patterns of Global Terrorism: 1995, U.S. Department of
State, April 1996. Patterns of Global Terrorism: 1996, U.S.
Department of State, April 1997.
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In addition, individual acts of revenge or criminality must be
considered since the consequences of such acts can be just as deadly.
For example:
November 15, 1979: The bombing of American Airlines flight 444, en
route from Chicago to Washington, DC. An improvised explosive device
concealed in a mail package in the baggage compartment malfunctioned
and partially detonated. The explosion resulted in damage to the
aircraft and treatment of 12 passengers for smoke inhalation. The
bombing was attributed to the Unabomber.
--December 7, 1987: The destruction of Pacific Southwest Airlines (PSA)
Flight 1771. Flight 1771 crashed after a recently terminated airline
employee boarded the Los Angeles-
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San Francisco flight with a handgun, shot one passenger (his former
supervisor), the flightcrew, flight attendant, and presumably himself.
As a result, all 38 passengers and five crew on board were killed. The
fired employee retained his airline ID after his dismissal and used it
to bypass the passenger screening checkpoint.
June 27, 1995: A letter was received from the Unabomber threatening
to blow up an aircraft departing Los Angeles International Airport
(LAX) within six days. The FAA responded to the threat by directing
additional security countermeasures to be put into effect at LAX. The
six days elapsed without incident.
Response to Terrorist Incidents
The incidents discussed above have led to concerted efforts to
strengthen aviation security around the world and to strengthen the
security procedures of U.S. air carriers. The FAA has responded to
threats to the civil aviation system by issuing extensive amendments,
examples of which are described below, to air carrier security programs
as prescribed by part 108.
The FAA issued two emergency amendments to part 108 in the
aftermath of the 1985 terrorist attack on TWA Flight 847. A new
Sec. 108.10 (50 FR 28892, July 16, 1985) required air carriers to use
Ground Security Coordinators and In-flight Security Coordinators; a new
Sec. 108.14 (50 FR 27924, July 8, 1985) mandated the transportation of
Federal Air Marshals (FAM's) on designated flights.
In February 1986, the Secretary of Transportation directed a
comprehensive review of aviation security policy and practices. Air
carrier security programs were extensively amended to implement the
recommendations from this review.
In December 1987, the FAA issued another emergency amendment
following the PSA Flight 1771 crash. This amendment limited the
application of special procedures that had allowed airline and airport
employees to enter sterile area past screening points without
inspection.
In 1989, the FAA issued further amendments to air carrier security
programs. A new Sec. 108.18 (54 FR 28982, July 10, 1989) required air
carrier compliance with Security Directives issued by the FAA in
response to a threat; a new Sec. 108.20 (54 FR 36938, Sept 5, 1989)
established the framework for the use of Explosives Detection Systems
at certain airports.
In addition, the FAA issued two amendments to part 108. One
amendment, Sec. 108.19(a), (56 FR 27866, June 17, 1991) required the
notification of flight and cabin crewmembers of threats to the security
of their flight. A second amendment, Sec. 108.31 (56 FR 41412, August
20, 1991), established minimum standards for the hiring, continued
employment, and contracting for air carrier and airport employees
engaged in security-related activities.
The FAA added a new Sec. 108.33 (60 FR 51854, October 3, 1995).
This section establishes the FAA's authority and procedures for
conducting personnel background investigations as a basis for granting
airline industry contractor employees access privileges to restricted
operations areas of airports.
On August 4, 1989, former President Bush established the Commission
on Aviation Security and Terrorism.\3\ The Commission was tasked with
making an assessment of the overall effectiveness of the U.S. civil
aviation security system.
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\3\ President's Commission on Aviation Security and Terrorism,
Report to the President, Government Printing Office, May 1990.
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The Commission's final report of May 15, 1990, made a number of
recommendations for improving the U.S. civil aviation security program.
The Commission was critical of the domestic U.S. civil aviation
security system for failing to provide the proper level of protection
for the traveling public and urged major reforms. Specifically, the
Commission recommended that the ``FAA initiate immediately the planning
and analysis necessary to phase additional security measures into the
domestic system over time.'' The Commission's report prompted the
Aviation Security Improvement Act of 1990 (Pub. L. 101-604), which was
enacted on November 16, 1990. It mandated many changes to air carrier
security programs as well as Federal staffing and reporting procedures.
The Act required implementation of many of the Commission's
recommendations.
The proposed revisions to part 108 respond to Federal reports. In
September 1993, the Office of the Inspector General (IG) and the U.S.
Department of Transportation issued a report critical of certain
aspects of the FAA's oversight of airport security systems.\4\ In
January 1994, the General Accounting Office (GAO) issued a report
suggesting further actions the FAA could take to improve civil aviation
security.\5\
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\4\ DOT Office of Inspector General, Audit of Airport Security,
Federal Aviation Administration, Report No. RF-FA-3-105, September
20, 1993.
\5\ United States General Accounting Office, Report to
Congressional Committees, Aviation Security: Additional Actions
Needed to Meet Domestic and International Changes, January 1994.
Hereafter cited as `GAO Report.'
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The IG report found significant deficiencies in the effectiveness
of access control and challenge procedures at five U.S. airports. The
report recommended that airport and air carrier implementation of
procedures for access control and challenge be strengthened, stressing
that the FAA must take steps to increase air carrier employees'
awareness and responsibility for those procedures.
In January of 1994, the FAA responded to the report by meeting with
representatives of airport, air carrier, and airport tenant management
and employee groups and unions to discuss the IG's findings and to
emphasize the need for improved employee security awareness.
The response has been an industry-wide commitment to address the
identified weaknesses and improve compliance. In particular, many
airports and air carriers have improved their training programs and
instituted programs to provide individual incentives for compliance and
escalating disciplinary action for instances of non-compliance.
Compliance at those airports which have instituted such programs
improved markedly.
Separately, the GAO issued a report entitled, ``Aviation Security-
Additional Actions Needed to Meet Domestic and International
Challenges'' in response to a Congressional inquiry on FAA's efforts to
implement the Aviation Security Improvement Act of 1990. GAO found that
the FAA has taken important steps in response to the Act and cited
additional actions that should be taken to enhance the FAA's security
programs and iniatives. These actions include--(1) pilot-testing of new
procedures before implementation, (2) strengthening human factors
research and its application, and (3) making systematic analytical use
of information that the FAA collects during air carrier and airport
security inspections.
Similar to the IG report, the GAO report highlighted the need for
the FAA to increase industry employee's overall awareness for security
measures. The report concluded that the FAA must refine training and
procedures for personnel to increase sensitivity to security
requirements. The FAA agrees that complacency must be combated, and
considers improved employee training and increased accountability to be
part of the solution. Specific responses to issues raised by these
reports in this notice are discussed below in the ``Section-by-Section
Analysis.''
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The Role of the Aviation Security Advisory Committee
The Department of Transportation and the FAA are convinced that the
aviation industry and general public should have input into the
development of future aviation security measures and issues. On April
3, 1989, the Secretary of Transportation announced the formation of a
national aviation security advisory committee under the provisions of
the Federal Advisory Committee Act (Title 5 U.S. Code, Appendix II).
The Aviation Security Advisory Committee (ASAC) was formed to
examine all areas of civil aviation security and to ensure a higher
degree of safety for the traveling public by recommending improvement
of aviation security equipment and procedures. The ASAC is chaired by
the FAA's Assistant Administrator for Civil Aviation Security and makes
recommendations to the FAA Administrator. Committee membership
represents a balance of Federal government, aviation industry, and
consumer advocacy groups, including:
1. Air Courier Conference by America
2. Air Line Pilots Association International
3. Air Transport Association of America
4. Aircraft Owners and Pilots Association
5. Airport Law Enforcement Agencies Network
6. Airports Council International, Inc.
7. Allied Pilots Association
8. American Association of Airport Executives
9. Association of Flight Attendants
10. Aviation Consumer Action Project
11. Aviation Security Contractors Association
12. Cargo Airline Association
13. Families of PanAm 103 Lockerbie
14. International Airline Passengers Association
15. National Air Carrier Association, Inc.
16. National Air Transportation Association
17. Regional Airline Association
18. U.S. Department of Defense (Policy Board on Federal Aviation)
19. U.S. Department of Justice (Federal Bureau of Investigation)
20. U.S. Department of State
21. U.S. Department of Transportation (Office of Intelligence and
Security and Federal Aviation Administration Technical Center)
22. U.S. Department of the Treasury (Customs Service, Immigration and
Naturalization Service, and Secret Service)
23. U.S. Postal Service
24. Victims of PanAm Flight 103
All ASAC meetings are open to the public and are announced in the
Federal Register. Meetings are typically held three times a year.
Members of the public are permitted to attend and appear before the
committee, subject to reasonable limitations of space and time.
The FAA invited the ASAC to comment on the underlying issues and
potential solutions associated with the revision of parts 107 and 108.
In December 1993, the FAA sought the ASAC's input on a ``discussion
paper'' that presented a broad scope of security issues and concerns. A
copy of this paper is filed in the FAA public docket of this Notice of
Proposed Rulemaking (NPRM).
To address the issues raised in the discussion paper, the ASAC
formed two subcommittees to develop recommendations on airport and air
carrier security issues, respectively, and provided the FAA formal
recommendations on March 15, 1994. Individual ASAC members also
provided comments on issues when their respective organizations
differed from the position taken by the committee. The views of the
ASAC and of individual committee members were then forwarded to the FAA
with an overall recommendation that security regulations should remain
flexible and contain only general security performance standards.
Specific recommendations are addressed individually in the ``Section-
by-Section Analysis.''
The ASAC's Part 108 Working Group and the ASAC's Carriage of
Weapons Task Force recommendations for part 108 covered subjects such
as the applicability of security programs to helicopter and all-cargo
operations, revised definitions affecting the applicability of security
programs for charter operations, clarification of procedures for the
transporting of passengers under armed escort, and elimination of
confusion surrounding the circumstances allowing law enforcement
personnel to fly armed. The contributions of the ASAC are noted in the
``Section-by-Section Analysis'' portion of this NPRM.
Discussion of the Proposed Rule
This proposed revision of part 108 would comprehensively update air
carrier security regulations to more efficiently and effectively
address terrorist and other criminal threats to civil aviation. This
proposed action would incorporate both procedures currently in air
carrier security programs and new security procedures, in a manner that
is intended to allow regulated entities and individuals to understand
their responsibilities more readily. Lastly, the proposed revision
would incorporate certain new measures that would provide for better
security. For example, the proposed revision would make individuals
directly accountable to the FAA for violating certain regulations and
would require air carriers to include in their security programs
specific disciplinary action and penalties to be taken with employees
or tenants that do not comply with security requirements. Through these
changes, the FAA hopes to create a more effective mixture of individual
and corporate responsibility for complying with security regulations.
Security measures needed to counter the changing threat posed by
international terrorism are generally implemented through changes to
air carrier security programs. These programs are not public documents,
which protests the measures from compromise, and they can be changed
quickly to respond to threats and improve security as needed. The
security requirements that do not need to be protected from disclosure,
however, can be placed in this proposed rule to afford interested
parties the opportunity to comment on them.
Also, certain proposed changes to the rule, such as expanding part
108 to include private charter operations, which is discussed below in
the ``Section-by-Section Analysis'' of this proposal, can only be
changed by amending the applicability of the rule.
Airport security programs required by part 107 also have been
amended extensively since 1985. The FAA proposes to revise part 107,
which governs airport security, concurrently with this part. The
rulemakings will proceed in tandem. All references to proposed part 107
in this preamble are intended to refer to the concurrently proposed
revision of part 107.
The proposed revisions of part 108 and part 107 represent a
comprehensive approach toward upgrading the security requirements of
the civil aviation system. The intent of these proposed revisions is to
foster consistency and standardization throughout the national civil
aviation security program. Where possible, the revisions of part 108
and part 107 propose nearly identical language to enhance, clarify, or
propose security measures for implementation by both air carriers and
airport operators.
Changes to definitions in proposed Sec. 108.3 and Sec. 107.3 are
intended to promote a common understanding within the aviation
community when
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used in these respective regulations. Moreover, the proposed
definitions for both parts 108 and 107 take into account the need to
clarify the division of responsibility between air carriers and airport
operators for the implementation of aviation security measures.
Proposed Sec. 108.5 and Sec. 107.7 would clarify the authority of
the Administrator to conduct inspections or tests to determine air
carrier compliance with 49 U.S.C. Subtitle VII, and the regulations,
and the air carrier's and airport operator's obligation to provide FAA
Special Agents the necessary access and identification medium to
conduct inspections.
Proposed Sec. 108.9 and Sec. 107.11 contain language that would
prohibit persons from interfering with or compromising required
security methods or procedures. Further, new language proposed in
Sec. 108.103 and Sec. 107.103(a) would require the inclusion of a
security compliance program within an airport operator's and air
carrier's security program.
Proposed Sec. 108.105 and Sec. 107.105 reflect similar procedural
language for the approval and amendment of security programs. Proposed
Sec. 108.223 and Sec. 107.209 would require the airport operators and
air carriers to establish accountability standards for identification
media.
Finally, language is proposed in both notices to expand training
requirements to include personnel performing security-related duties
(proposed Sec. 108.227 and Sec. 107.211), to incorporate similar
sections for the implementation of contingency plans (proposed
Sec. 108.307 and Sec. 107.301), and to require compliance with Security
Directives (proposed Sec. 108.305 and Sec. 107.303).
Section-by-Section Analysis
Title and Organization of Proposed Part 108
It is proposed to change the title from Airplane Operator Security
to Aircraft Operator Security as this part would apply to operators of
rotorcraft as well as fixed-wing aircraft. All references to
``airplane'' in this part would be changed to ``aircraft.''
Proposed Secs. 108.1 through 108.3 would have revised texts but
would retain the same numbers. Subsequent sections would be reorganized
to place related requirements into common subparts. To do so would
require a change in the current numbering scheme of part 108. For
example, current Secs. 108.5, 108.7, and 108.25 contain provisions
regarding security programs. Under this proposal, these sections would
be renumbered as new Secs. 108.101, 108.103, and 108.105 under subpart
B entitled ``Security Program.'' In this notice, the FAA has also
revised or modified certain sections where necessary, including some
changes to titles of some current sections. Many proposed changes are
intended only to place related requirements in logical order or reflect
requirements previously implemented in air carrier approved security
programs. Other changes, discussed below, are based on an FAA review of
part 108 and experience with current requirements.
Throughout the proposed rule, references are made to 49 U.S.C.
Subtitle VII. This statute is the recodification of FAA's authority to
prescribe aviation security regulations previously found in the Federal
Aviation Act of 1958, 49 U.S.C. App. 1301 et seq.
Subpart A--General
Section 108.1 Applicability
As noted above in ``Discussion of the Proposed Rule'' recent events
indicate that terrorism is a credible threat in the U.S. Currently,
part 108 does not apply to private charter operations, and excludes
helicopter operations from the requirements of part 108. This notice
proposes, in Sec. 108.1(a)(1), to extend the application of part 108 to
private charter operations when passengers are enplaned from or
deplaned into sterile areas, and to remove the exclusion of
applicability to helicopter operations. The FAA believes that this
proposed notice will enhance the security of the sterile area by
minimizing the opportunity for transfer or introduction of dangerous or
deadly weapons into the sterile area by unscreened persons disembarking
from private charter or helicopter operations into the sterile area.
In response to the FAA's December 1993 discussion paper on air
carrier issues and concerns, the ASAC's Part 108 Working Group
commented that helicopter operators should be permitted to voluntarily
participate in an air carrier security program. The Part 108 Working
Group noted that some helicopter activities place operators in direct
contact with part 121 operations. This occurs when helicopter
passengers disembark in the secure areas of terminals and when
helicopter operators interline with larger air carriers. The part 108
Working Group believes that, to expedite the handling of such
passengers through secure areas without diminishing the security of the
sterile area, part 108 should permit helicopter operators to
participate in the security program. The FAA concurs with the opinion
of the part 108 Working Group. Any operators that enter the secured
areas, that enplane from or deplane into a sterile area, or that use
screening checkpoints, impact the security of all operations, and
should have written and approved security programs. Accordingly, this
notice proposes extending the applicability of Sec. 108.1 to private
charter operations and, under certain specified conditions, helicopter
operations to adopt and implement a security program.
Currently, part 108 does not apply to all-cargo operations.
However, some all-cargo operators have requested and have been issued
security programs. This permits them to take direct responsibility for
security measures in some of airports, rather than having the airport
carry out the measures. This notice proposes to specifically provide
for all-cargo operations to voluntarily adopt and implement security
programs as described under Sec. 108.101 below. This proposed language
would be advantageous to the operations of the all-cargo operator and
would allow the all-cargo operator to directly receive Security
Directives from the FAA, thereby increasing the timely implementation
of any enhanced security measures required by the FAA.
Part 108 currently refers to the ``Director of Civil Aviation
Security'' as the official who oversees civil aviation security
operations and approves airport security programs. Under internal FAA
reorganization, the current title of this position is Associate
Administrator for Civil Aviation Security; however, the recent
recodification of the FAA's statutory authority revised this title to
Assistant Administrator for Civil Aviation Security. As such,
paragraphs (a)(1) and (b) of this section would use the title
``Assistant Administrator for Civil Aviation Security.'' In addition,
paragraph (b) would clarify that the Deputy Assistant Administrator for
Civil Aviation Security, or any individual formally designated, could
act in the capacity of the Assistant Administrator. The duties of the
Assistant Administrator could be further delegated.
Section 108.3 Definitions
For purposes of part 108, Sec. 108.3 would be revised to include
terms commonly used within the aviation community and to update current
terms used in existing Sec. 108.3. The introductory text of this
proposed section would make the definitions in proposed part 107 also
apply to this part.
The following definitions would be added: Accepted security
program,
[[Page 41735]]
Approved security program, Assistant Administrator, and Principal
security inspector. The following definitions would be revised:
Passenger-seating configuration, Private charter, Public charter,
Scheduled passenger operations, and Sterile area.
The definition for ``certificate holder'' in existing Sec. 108.3
would be deleted. For purposes of this part all references to
``certificate holder'' would be replaced with ``air carrier.'' The
definition of ``air carrier'' is defined under 14 CFR part 1,
Definitions and Abbreviations. The FAA believes that using the term
``air carrier'' is necessary in order to simplify intent and to avoid
any confusion in terms among the various categories of certificates
issued by the FAA.
Section 108.5 Inspection Authority
Under this proposal, existing Sec. 108.5 entitled ``Security
Program: Adoption and implementation'' would be renumbered as new
Sec. 108.101 under new Subpart B, Security Programs. Proposed
Sec. 108.5 would be completely revised and placed under new Subpart A,
General. This proposed section would combine the evidence of compliance
requirements of existing Sec. 108.27 with the FAA's statutory authority
to conduct inspections, investigations, and tests.
In this proposed Sec. 108.5, language similar to that found in
Sec. 121.81(a) would be included in proposed paragraph (a) to make
clear that the Administrator has authority to conduct inspections or
tests to determine air carrier compliance with the air carrier security
program, part 108, 49 CFR part 175, and 49 U.S.C. Subtitle VII.
The authority for the FAA to conduct inspections necessary to gauge
compliance with Federal security requirements has, on occasion, been
challenged by air carriers. The proposed new language is intended to
resolve any confusion regarding FAA's authority to conduct such
inspections under Title 49 U.S.C. Subtitle VII.
Proposed paragraph (b) would restate the language of existing
Sec. 108.27. Proposed paragraph (c) would clarify the operator's
obligation to provide FAA Special Agents the necessary access and
identification medium to conduct inspections. This proposed requirement
would not be extended to any FAA employee other than Special Agents.
Special Agents are those FAA employees who are authorized to conduct
inspections of airport and air carrier security operations and who must
possess and present valid FAA-issued credentials. There are some
inspections and investigations that a Special Agent can accomplish only
with unescorted access to the critical security area and restricted
operations area. The FAA will provide criteria for ascertaining the
validity of Special Agents' credentials in non-regulatory guidance
materials. However, air carriers may be required to accept FAA Form
8000-39 as valid identification media.
Section 108.7 Falsification
Under this proposal, existing Sec. 108.7 entitled ``Security
program: Form, content, and availability'' would be renumbered as new
Sec. 108.103 under new Subpart B, Security Programs. Proposed
Sec. 108.7 would be completely revised and would be included under
Subpart A, General. This section is the same as the current Sec. 108.4
adopted on November 27, 1996 (61 FR 64242, December 3, 1996).
Section 108.9 Security Responsibilities of Persons
Under this proposal, existing Sec. 108.9 entitled ``Screening of
passengers and property'' would be renumbered as new Sec. 108.201 and
retitled ``Screening of persons, property, and acceptance of cargo''
under new Subpart C, Operations. Proposed Sec. 108.9 would be
completely revised and placed under proposed Subpart A, General.
The FAA believes that the contribution of individuals to the
success of the civil aviation security system cannot be overestimated
and that the regulations must address the responsibility of individuals
who work within the security system. Therefore, the FAA is proposing to
prohibit persons from tampering, compromising, or modifying any
security system, or carrying a deadly or dangerous weapon, explosive,
or destructive substance into sterile areas, critical security areas,
or restricted operations areas. Although the air carrier is primarily
responsible for carrying out statutory and regulatory security
responsibilities under this part, the FAA believes that it is critical
that persons employed directly by the air carriers or under contract to
the air carriers understand the importance of their responsibilities to
ensure that security measures within the civil aviation system are
properly implemented.
This section proposes specific requirements to make persons aware
of regulatory prohibitions against interfering with or compromising
security methods or procedures required under this part. Moreover, by
including these prohibitions in the regulation, this proposed section
would permit the use of civil penalty action as a means to gain
compliance under this part by the persons who are employed by the air
carrier and other persons not under the direct authority of the air
carrier (such as trespassers).
While there are some instances in which enforcement action against
persons may be taken by the FAA, in many cases enforcement action would
not be appropriate or necessary. The FAA intends, in proposed
Sec. 108.103, to require the air carrier to include in its security
program procedures to ensure that persons with unescorted access to
critical security areas or restricted operations areas will comply with
the requirements of this section. The FAA anticipates that the air
carrier would remain the primary party responsible for violations,
including those committed by their employees and contractors. However,
in appropriate cases, persons who fail to comply would be subject to
enforcement action, such as a civil penalty of up to $1,100 per
violation of these rules.
The term ``person,'' used throughout this new section and the
proposed rule, is used as defined in Sec. 1.1, General Definitions,
which defines person to mean an individual, firm, partnership,
corporation, company, association, joint-stock association, or
governmental entity, and includes a trustee, receiver, assignee, or
similar representative of any of them.
Proposed paragraph (a) of this new section would prohibit tampering
or interfering with an air carrier's security system, including
circumventing access control systems and misusing identification media.
This proposed paragraph is intended to provide a deterrent which, in
turn, would promote the effectiveness of the security control measures
required by this part.
For instance, many air carriers have invested in personnel
identification systems as a means of satisfying the requirement to
control movement under exclusive area agreements. Proposed parts 107
and 108 would require the use of personnel identification systems in
both critical security areas and restricted operations areas and would
set forth minimum standards for personnel identification systems.
Making persons directly responsible for complying with personnel
identification media display requirements would significantly promote
the effectiveness of such identification systems.
Further, this section would prohibit persons from compromising, or
rendering less effective, any system implemented in response to the
various requirements of this part. This prohibition includes similar
language found in existing Sec. 107.25(f) that prohibits the use of an
airport-approved
[[Page 41736]]
identification by any person unless it is issued to that person.
However, the proposed language would expand the prohibition to
encompass any type of intentional misuse, such as tampering,
compromise, or modification, of security systems or the unauthorized
circumvention of these systems. Such acts would include writing on
walls or doors the combination lock numbers that provide access to
critical security areas or restricted operations areas, temporarily or
permanently disabling electronic access systems, and loaning of access
or identification media which would provide access to, and movement
within, security sensitive areas of an airport without authorization.
Under part 108, the responsibility rests with the air carrier for
ensuring that unauthorized items which may be harmful to civil aviation
or to the traveling public do not get into the sterile area. The FAA,
accordingly, believes that the current prohibition found in existing
Sec. 107.21(a) against persons introducing a deadly or dangerous
weapon, explosive, or incendiary into sterile areas is more
appropriately located in part 108. The FAA proposes transferring the
existing prohibition found in Sec. 107.21(a) to proposed part 108.
The risk to the traveling public presented by the presence of a
deadly or dangerous weapon, explosive, or incendiary, or destructive
substance should not be underestimated. Paragraph (b) of this section,
as proposed, has been drafted to prohibit the unauthorized possession
of such weapons or other dangerous items in sterile areas, critical
security areas, and restricted operations areas. The current rules
refer to the carriage of ``explosive, incendiary, or deadly or
dangerous weapons'' in various paces, including existing Sec. 107.21
and Sec. 108.9. The statute, however, refers to searching persons and
property for the presence of a ``dangerous weapon, explosive, or other
destructive substance.'' (See 49 U.S.C. 44902) In order to make more
clear what items the air carriers search for and what items are
controlled in various areas secured for the purposes of part 108, the
FAA proposes to refer throughout the revised part to ``deadly or
dangerous weapon, explosive, incendiary, or other destructive
substance.'' This change is proposed in paragraph (b) of this section
as well as proposed Secs. 108.103, 108.201, and 108.219. The FAA also
will provide guidance on destructive substances to minimize confusion
over the applicability of the term ``destructive substance.''
This section is also intended to prohibit persons from conducting
unauthorized ``tests'' of air carrier security systems by compromising
or circumventing any element of the system. Proposed paragraph (c)
would allow for individuals authorized by the Federal government,
airport operator, and air carrier to conduct tests and inspections of
security systems.
Provisions regarding the carriage of firearms by law enforcement
officers and other authorized personnel found in existing
Sec. 107.21(b) would be included in proposed paragraph (d). Paragraph
(d) proposes that provisions of this section that apply to firearms and
weapons would not be applicable to law enforcement personnel, Federal
Air Marshals, and certain individuals authorized in an airport security
program to carry a weapon, such as armed guards protecting currency or
valuable shipments. This paragraph would further exempt persons
properly transporting declared firearms under proposed Sec. 108.213 or
hazardous materials under 49 CFR part 175 from firearms and weapons
prohibitions. Proposed paragraph (d)(7) also would exclude from these
prohibitions weapons and firearms legally carried aboard non-air-
carrier aircraft, such as general aviation pilots operating personal
aircraft and transporting firearms in compliance with state and local
laws.
The concept of requiring persons to be responsible for complying
with security measures was generally supported by the ASAC,
particularly the airport operator representatives. Two ASAC members,
the Air Line Pilots Association and the National Air Transport
Association, however, expressed reservations about the feasibility of
enforcing such a requirement and suggested that security resources
could be better used elsewhere to achieve the same results.
Nevertheless, by promoting awareness of security responsibilities, this
proposal also would address the concerns raised by the DOT IG about
employee awareness of, and compliance with, access control and
challenge procedures. Further, this proposed section parallels efforts
to require that persons be accountable for their actions related to the
dissemination of sensitive security information (62 FR 13736, March 21,
1997).
Other federal regulations and statutes may also contain applicable
security and safety responsibilities of persons, including the
following: proposed Sec. 108.221, Access investigation; proposed
Sec. 108.201 Screening of persons and property and acceptance of cargo;
proposed Sec. 108.213 of this part, Carriage of weapons; part 191 of
this chapter, Protection of Sensitive Security Information; 49 CFR part
175, Transportation of hazardous materials; 49 U.S.C. 46302, regarding
false information involving aircraft piracy, interference with flight
crew members, carrying a weapon, and other criminal laws; and 49 U.S.C.
46303, regarding carrying a weapon.
Subpart B--Security Program
Section 108.101 Adoption and Implementation
As mentioned in the discussion above under proposed Sec. 108.5,
proposed Sec. 108.101 would be renumbered from current Sec. 108.5 and
included under new Subpart B, Security Program.
As discussed above, proposed Sec. 108.1 would be revised to extend
the application of part 108 to include private charter and helicopter
operations. The FAA proposes to require helicopter operators to adopt
and implement a security program under part 108 for the same type of
passenger operations that require an airplane operator to adopt and
implement a security program. Private charter operators also would be
required to adopt and implement a security program for certain
operations.
Currently, not all air carrier passenger operations (including
private charters and helicopter operations) either boarding passengers
or deplaning passengers through established sterile areas are required
to implement the same security requirements to ensure full compliance
with security measures protecting the security of the sterile areas.
Passengers embarking from, or deplaning through, sterile areas from
private charters and helicopter operations are subject to the security
program requirements of the air carrier responsible for the security of
the sterile area. Security measures of screening passengers from
private charters and helicopter operations interlining with large
carriers represent, however, only a portion of the scope of security
measures needed to maintain the security integrity of the sterile area
or the ramp area used by private charters and helicopter operations.
Private charters and helicopter operations assisted by large carrier
screening and escorting of their enplaning or deplaning passengers
through the sterile area do not have to address other security measures
such as specialized crew training, aircraft inspection procedures,
checked baggage acceptance procedures, or procedures for escorting
prisoners, to name a few.
[[Page 41737]]
The ASAC's Part 108 Working Group recommended that the exclusion of
all-cargo helicopter, and private charter operations from ``security
program coverage'' should be modified. The operations of all-cargo air
carriers and helicopter operators should be allowed to participate
voluntarily in the security program. The Part 108 Working Group also
observed that the original justification for the differing
applicability of part 108 to private charter vs. public charter was
that passengers traveling on private charters, being brought together
in a common association (e.g., corporation, professional sports team),
did not generate a security threat to the flight. Accordingly, under
the current part 108 definition, the Part 108 Working Group indicated
that application of a security program was unnecessary for private
charters. The Part 108 Working Group also commented that there have
been no ``incidents'' to generate a change to part 108 applicability to
private charters. Other ASAC members commented that private charters do
not pose a security concern and that security measures should be
commensurate with the security threat.
The FAA believes that the security of the sterile area cannot be
compromised. As previously cited above, the Part 108 Working Group
noted that some helicopter activities place operators in direct contact
with part 121 operations. This occurs when helicopter passengers are
disembarked in the secure areas of terminals and when helicopter
operators interline with large air carriers. Further, the Part 108
Working Group expressed belief that any operations that use screening
checkpoints should have written and approved security programs to
accomplish that screening. Accordingly, this notice proposes that all
air carriers that enplane or deplane passengers through sterile areas
would be required to adopt and implement a security program for those
operations.
The fight performance (especially range) of less-than-61 seat
aircraft has significantly improved since 1981, which may make them
more attractive to hijackers. Further, the threat to U.S. interests
outside the U.S. potentially affects the security risk to private
charter and less-than-61-seat operations. This notice proposes,
therefore, that U.S. operators of private charter flights with greater
than 30 passenger seats to any location and all operators regardless of
the seating capacity of the aircraft on fights to, from, or between
localities outside the U.S. would be required to adopt a security
program. This proposal is consistent with the International Civil
Aviation Organization's (ICAO) security standards. The ICAO standards
do not differentiate security requirements by aircraft seating
capacity, and they require the screening of passengers for all
international flights. However, the threat to such flights is not
always of sufficient level to require full security measures to be
taken. Accordingly, this notice proposes that the requirement for these
carriers to screen passengers and to secure aircraft be implemented
only when the Assistant Administrator for Civil Aviation Security
notifies the carriers that there is a security threat to that
operation.
Section 108.103 Form, Content and Availability
As mentioned in the discussion above under proposed Sec. 108.7,
proposed Sec. 108.103 would be renumbered from current Sec. 108.7 and
included under new Subpart B, Security Program. This section proposes
to modify the list of items required in the security program.
Paragraph (b) proposes the inclusion of procedures and a curriculum
to implement an individual accountability compliance program. Through
the proposed individual accountability compliance program, the air
carrier would ensure that each of its employees and contractors are
fully aware of their personal accountability for control and use of
airport-approved identification media. The program would enhance the
awareness of their employees and contractors of the methods by which
the airport operator and the air carrier will monitor compliance of
persons with the security requirements of part 108. Additionally, this
notice would require that penalties be imposed on persons who are not
in compliance, those penalties shall be levied in accordance with the
standards contained in the air carrier's approved security program.
This section also would require the air carrier to designate an Air
Carrier Security Coordinator and the means by which this person can be
contacted on a 24-hour basis. This proposal would ensure that the FAA
can contact a responsible security official at the corporate level
whenever the need arises.
Paragraph (c) proposes a change from the current requirement that
air carriers maintain a copy of security documents at each airport
where security screening is being conducted, to a requirement that air
carriers ensure the availability of such documents at each airport
served. The FAA knows that certain types of operations, such as charter
flights, present logistical problems to the air carriers if they have
to maintain a copy of their security program at the airport, as
currently required under part 108, as they may not have a station
established at that specific airport. Accordingly, the proposed
requirement would permit the air carrier to have the necessary
documents available for electronic transmission from another location
or the necessary documents onboard the aircraft.
Section 108.105 Approval and Amendments
Under this proposal, existing Sec. 108.25 entitled ``Approval of
security programs and amendments'' would be renumbered as new
Sec. 108.105 under new Subpart B, Security Program. Proposed
Sec. 107.105 prescribes the same approval and amendment procedures.
To provide for the timely response to a security threat to civil
aviation, and in accordance with existing practice, proposed
Sec. 108.105 would delegate approval of security programs or amendments
to the Assistant Administrator for Civil Aviation Security. To
formalize the existing practice, emergency amendments to approved air
carrier security programs would also be issued by the Assistant
Administrator. The notice proposes to expand this section to include
greater specificity and similarity in the procedures for the amendment
process for both part 108 and part 107 of this chapter.
In addition to prescribing procedures for approval of security
programs required under existing Sec. 108.25, proposed paragraph (a)
provides for the Administrator to dispose of any petition within 30
days of receipt.
Paragraph (b) of this new section would prescribe procedures for an
air carrier to request an amendment to its air carrier security program
now covered under existing Sec. 108.25. Currently Sec. 108.25(c) states
that the FAA will either approve or deny the request within 15 days.
The proposal extends this time period to provide the FAA with a more
realistic period in which to conduct a comprehensive review of the
proposed amendment to an air carrier security program. Under this
proposal, the FAA would have 45 days after receipt for approval or
denial of the proposed amendment. The proposed rule also notes that the
amendment process may take longer than 45 days if the proposed
amendment is modified or denied. These language changes are intended to
allow extra time for the FAA to discuss these changes with the air
carriers.
Retention of the FAA's existing procedures to amend an air carrier
security program is proposed in paragraphs (c) and (d). Two significant
changes, however, are being proposed to
[[Page 41738]]
the existing procedures of Sec. 108.25: (1) A new requirement for air
carriers to submit petitions for reconsideration no later than 15 days
before the effective date of the amendment, and (2) a clarification
that a petition for reconsideration does not stay the effective date of
an emergency amendment. These changes also are proposed to ensure a
timely and efficient exchange of information.
The ASAC recommended that any amendment issued by the FAA to an air
carrier security program include an expiration date. The committee was
concerned that the FAA may use the amendment process to circumvent the
rulemaking process and suggested that the FAA be required to initiate a
formal rulemaking if it wished the provisions of the amendment to
continue after the expiration date.
When there is information that cannot be discussed in a public
forum, amendment of the security program provides a means to impose and
implement a new requirement. The FAA does not believe it would be in
the best interest of the traveling public to require a rulemaking for
every amendment to an air carrier security program, but will establish
internal procedures to periodically review amendments to ensure that
their inclusion in the security program, rather than part 108, is
appropriate.
Subpart C--Operations
Section 108.201 Screening of Persons and Property, and Acceptance of
Cargo
The White House Commission on Aviation Safety and Security
recommended, and the Federal Aviation Reauthorization Act of 1996
required, that the FAA certify screening companies providing security
screening. This proposal does not respond to these mandates, however,
as noted above, the FAA has issued an Advance Notice of Proposed
Rulemaking on certification of screening companies.
Air carriers currently air required to screen all persons entering
a sterile area through a screening checkpoint. As mentioned in the
discussion above under proposed Sec. 108.9, proposed Sec. 108.201 would
be renumbered from current Sec. 108.9 and included under new Subpart C,
Operations. It is also proposed to change the title of this section
from ``Screening of passengers and property'' to ``Screening of persons
and property, and acceptance of cargo'' to indicate that all persons,
and not just passengers, are required to be screened as they enter the
sterile area through a screening checkpoint.
To facilitate the transit of air carrier employees who have already
been subjected to other security systems, the proposed section would
provide that persons who are authorized unescorted access to an airport
critical security area may enter a sterile area from a public area
using security procedures proposed in Sec. 107.207, ``Access control
systems'' under the parallel NPRM that revises part 107. The proposed
language of Sec. 107.207 would establish performance standards for
access control points that are now found in existing Sec. 107.14.
Proposed Sec. 108.201(b) would require the air carrier to ``detect
and prevent'' instead of the current requirement to ``prevent to
deter,'' the carriage aboard aircraft or entry into a sterile area of
any explosive, incendiary, deadly or dangerous weapon, or destructive
substance on or about individuals or their accessible property. The
proposed language more definitively describes the air carriers' duties
regarding screening of persons and property. It is based on existing
procedures under the air carrier approved security programs that
basically require the air carrier to ``detect and prevent'' or be
subject to compliance enforcement action.
The requirements proposed in Sec. 108.201(d),(e), and (f) would
transfer unchanged from existing Secs. 107.20 and 107.21. These
existing sections require the individual to submit to screening of
their person and property and restrict the carriage of firearms into
sterile areas to those persons required to have the weapons in
performance of their duties, law enforcement officers traveling armed
aboard aircraft, and persons specifically authorized under an approved
security program. Since control of the sterile area and screening are
the air carriers' responsibilities, these requirements are more
appropriate to this part than part 107.
The ASAC's Part 107 Working Group recommended that the part 107
provision not be transferred to part 108 insofar as the ``objective of
this prohibition is the protection of sterile areas, rather than air
carriers. . .'' The Part 108 Working Group did not comment on this
issue.
The requirements that are proposed to be moved from part 107 to
part 108 apply to individuals. They deal with activity at the screening
checkpoint, in the sterile area, and aboard the aircraft. Because the
air carriers primarily are responsible for these areas, the FAA
believes that it is appropriate to locate the rules applying to
individuals along with the rules applying to the air carriers.
Proposed Sec. 108.201(h) would require air carriers to prevent the
carriage of any explosive or incendiary on board an aircraft in any
form. Although current security procedures applicable to the acceptance
of cargo for transport on board passenger aircraft are contained in the
air carriers' approved security program, the basic requirement to apply
security measures to cargo is not currently in the rule and this
proposal would correct that omission.
Section 108.203 Use of Metal Detection Devices.
Metal detection devices (MDD's) (such as walk-through metal
detectors) have long been an integral part of the passenger screening
system. Testing, calibration, and operational requirements for MDD's
are currently incorporated in the air carrier's security program. This
proposed new section would be included under new Subpart C, Operations,
and would require the air carrier to use equipment that meets the
calibration standard set by the FAA and to conduct screening with MDD's
in accordance with its approved security program. This section would
not change the current security program requirements.
Section 108.205 Use of X-ray Systems
Under this proposal, existing Sec. 108.17 entitled ``Use of X-ray
systems'' would be renumbered to proposed Sec. 108.205 and included
under new Subpart C, Operations.
In proposed Sec. 108.205, the FAA would update the technical
standards for X-ray systems. The reference incorporating American
Society for Testing and Materials (ASTM) Standard F-792-82 would be
updated to reflect the current ASTM Standard, F-792-88 (Reapproved with
an amendment in 1993). In addition, references to Food and Drug
Administration regulations governing cabinet X-ray systems manufactured
before April 25, 1974, are no longer necessary and, therefore, would be
deleted.
Under this proposal, application of Sec. 108.205 would be extended
to X-ray systems under the air carrier's operational control at
airports outside the U.S. as currently required in security programs.
Air carriers at designated foreign locations are now required to
perform X-ray inspection of baggage and suspect items. X-ray systems
used for this purpose should meet the same standards as X-ray systems
used to inspect baggage in the U.S. to ensure that the prescribed
security measures are equally effective. X-ray systems owned and/or
operated by government authorities or government-mandated security
companies at foreign airports and not
[[Page 41739]]
under the operational control of the air carrier would not be subject
to the proposed regulation.
The FAA is proposing to omit the current requirement in
Sec. 108.17(a)(4) that the air carrier issue to each operator of an X-
ray system an individual personal dosimeter to measure exposure to X-
rays, and evaluate it every month. In 1975 the FAA first adopted rules
regarding the use of X-ray machines to screen carry-on baggage. At that
time, the use of X-ray systems for this purpose was relatively new, and
the FAA took a number of steps to evaluate the safety and environmental
impact of these systems. Although the experts who submitted comments
did not find it was necessary for operators of the equipment to wear
dosimeters, the FAA's rules included such a requirement. The FAA now
proposes to remove this requirement based on the determination of those
agencies with the expertise.
The Food and Drug Administration regulates cabinet X-ray machines
of the type used under part 108. Those rules, found at 21 CFR 1020.40,
do not require that operators use dosimeters. The Occupational Safety
and Health Administration has regulations for protection of persons in
areas with certain levels of ionizing radiation, but these rules do not
apply to low levels involved with the cabinet X-ray systems used under
part 108. Some states may have regulations regarding the use of X-ray
equipment, and may require the use of dosimeters.
The X-ray machines used under part 108 are required to be tested
regularly. Further, the X-ray machines used today use lower levels of
radiation than they did when the FAA rules were first adopted. Since
1975 the FAA has been aware of no incident in which a person received
excess radiation from X-ray machines used for screening under an FAA-
approved program.
Accordingly, it does not appear that there is a need for the FAA to
require the operators of X-ray equipment to use dosimeters, and the FAA
proposes to remove this requirement. Air carriers would still be
required to comply with any requirements of another Federal agency or
state government regarding the use of dosimeters.
This notice proposes the deletion of the term ``passengers'' under
Sec. 108.205(e) and substitutes the term ``persons'' in recognition
that, during daily operations, passengers are not the only category of
individuals to enter a sterile area through a screening checkpoint with
an X-ray system.
Section 108.207 Use of Explosives Detection Systems
Under this proposal, existing Sec. 108.20 entitled ``Use of
Explosives Detection Systems'' would be renumbered as new Sec. 108.207
and included under new Subpart C, Operations. Other than renumbering
this section from Sec. 108.20, replacing the reference to Sec. 108.25
with Sec. 108.105, and replacing ``certificate holder'' with ``air
carrier,'' no further revisions would be made to this section.
Section 108.209 Employment Standards for Screening Personnel
Under this proposal, existing Sec. 108.31 entitled ``Employment
standards for screening personnel'' would be renumbered as new
Sec. 108.209 and included under new Subpart C, Operations.
This section proposes that, in the event the air carrier is unable
to implement this section for screening functions outside the U.S., the
air carrier shall notify the Administrator of those air carrier
stations so affected to facilitate resolution of compliance issues with
this section of part 108.
Section 108.211 Law Enforcement Personnel
Under this proposal, existing Sec. 108.15 entitled ``Law
Enforcement Officers'' would be retitled ``Law enforcement personnel,''
renumbered as new Sec. 108.211, and included under new Subpart C,
Operations.
As mentioned in the discussion of proposed Sec. 108.1, this notice
proposes to extend the applicability of part 108 to private charter
operations when passengers are enplaned from or deplaned into sterile
areas, and remove the exclusion of applicability to helicopter
operations, Accordingly, part 108 air carriers operating passenger
service or charter passenger operations at airports not governed under
proposed Sec. 107.217 would be required, in the absence of the part 107
airport operator providing law enforcement support, to provide for law
enforcement personnel in a manner adequate to support its security
program.
This notice also proposes extending the applicability of proposed
Sec. 108.101, under certain circumstances, to scheduled passenger or
public charter operations with an aircraft having a passenger seating
configuration of less than 61 seats engaged in operations to, from, or
outside the U.S.
The FAA is aware that screening is not required for certain
operations under proposed Sec. 108.101(a). Nevertheless, in order to
implement certain security measures under security threat conditions,
which could include screening, the requirement of the air carrier to
provide for law enforcement support under this section would be
revised, Under this proposed section, the requirement for air carriers
to provide for law enforcement personnel, in a manner adequate to
support its security program, would be extended to international
passenger services of less-than-61-seat aircraft that operate under
proposed Sec. 108.101(a) at airports not governed under proposed
Sec. 107.217 of this chapter.
Section 108.213 Carriage of Weapons
Under this proposal, existing Sec. 108.11 entitled ``Carriage of
Weapons'' would be renumbered as new Sec. 108.213 and would be included
under new Subpart C, Operations.
The revised procedure for carrying weapons aboard aircraft by
authorized law enforcement personnel proposed in this section is
intended to reduce the number of weapons accessible to passengers
aboard aircraft. This notice proposes adopting into part 108 the ASAC's
recommendations to the FAA on this topic that the number of firearms
authorized to be carried should be reduced to the minimum necessary for
law enforcement personnel to perform their duties.
Only those persons performing official duties that meet the
``need'' criteria described below would be permitted to carry firearms
aboard the aircraft. The criteria of need to carry firearms aboard
aircraft are defined in proposed Sec. 108.213(a)(2) as:
(i) Providing protective escort (assigned to a principal or an
advance team).
(ii) Conducting hazardous surveillance operation.
(iii) Providing prisoner escort.
(iv) Status as an FBI Special Agent.
(v) Traveling as an FAA Federal Air Marshal on mission status.
(vi) Traveling as a law enforcement officer on official duties
required to report to a new location armed and immediately prepared for
duty.
Under proposed Sec. 108.213(a)(4), all such persons flying armed
would be required to complete a standard training program. The training
program was recommended by the ASAC as a requirement; a standard course
of about 2 hours for initial training. Training would cover the basic
procedures for flying armed and the concerns associated with carriage
of a firearm aboard an aircraft.
Further, all such persons flying armed would be required to be a
Federal law enforcement officer or a ``full time'' municipal, county,
or state law
[[Page 41740]]
enforcement officer. The term ``full time'' is taken to mean that the
primary source of earned remuneration by the person is for services
they have provided in support of law enforcement at the municipal,
county, or state level.
The phrase ``full-time employee'' is used to preclude any person
from flying as an ``armed law enforcement officer'' when that person
does not receive remuneration from the government entity represented
and does not meet, or is not required to meet, the training standards
of a full-time, commissioned law enforcement officer of that
department.
To the FAA's knowledge, all full-time, state, and local law
enforcement officers are required to have extensive state-approved
training. However, some state and local governments have reserve
officers, special police, special deputies, or other non-full-time
officers who may not be required to have the same extensive training.
The FAA believes that armed persons on aircraft should have the
extensive training that is required of full-time law enforcement
officers to provide the most assurance that they can carry out their
duties in the most professional and safe manner.
Persons flying armed also would be required to be ``currently
trained and certified'' and to complete a standard training course. In
this regard, ``trained and certified'' is used to mean that an
individual has satisfactorily completed the training required by the
employing agency or department and, in the case of state and local
officers, completed the training specified by the responsible
commission on Peace Officers Standards and Training. Moreover, the
individual also should have satisfactorily met all specific continuing
education and training requirements to currently enforce the criminal
laws of the jurisdiction in which employed.
The process currently used by armed individuals to board flights is
made easier when such individuals submit the existing form to the air
carrier to indicate that they will be traveling armed. It is proposed
to require the air carrier to provide the information contained in this
form (e.g., identify of armed individuals, authorization to fly armed,
itinerary, completion of the FAA course, ``Law Enforcement Officers
Flying Armed'') to the flight crew of each additional connecting flight
on the armed individual's itinerary.
Under proposed Sec. 108.213(a)(4), non-federal law enforcement
personnel would also be required to submit an original letter which is
signed by an authorizing official from their employer, confirms to the
air carrier the need to travel armed, identifies the trip itinerary,
and provides a statement that the person has completed the training
program ``Law Enforcement Officers Flying Armed'' as required by the
FAA.
The proposed regulation would also require the air carrier, in
proposed Sec. 108.213(a)(7)(ii), to ensure that the armed person has
fully completed and signed a form prior to boarding or entering a
sterile area which states that the person has completed the training
program ``Law Enforcement Officers Flying Armed'' as required by the
FAA.
It is proposed, in Sec. 108.213(b), that for flights where
screening is not conducted, an individual cannot carry a deadly or
dangerous weapon on board an aircraft. This restriction would not apply
to law enforcement personnel of the U.S., or a State or political
subdivision of a State, or of a municipality, who are authorized by his
or her agency to have the weapon in connection with his or her duties,
have completed the training program required by the FAA, and have
notified the air carrier of the intent to fly armed prior to boarding
the flight.
The FAA believes that a person flying with a weapon should not be
under the influence of alcoholic beverages which could impair his or
her judgment. Accordingly, this notice, in Sec. 108.213(c), proposes to
require that no person who has consumed an alcoholic beverage during
the previous 8 hours may fly with a weapon accessible to that person.
Similarly, the air carrier would not be permitted to serve alcohol to
the person and the armed person would not be permitted to consume it on
board.
The notice proposes, in Sec. 108.213(d), that armed individuals
would be required to keep their weapon concealed and out of view,
either on their person or in their immediate reach if carried in any
type of case, pouch, or container. A weapon may not be placed in
overhead storage bins. This would ensure that the armed individual
would remain in control of the weapon, and keep it out of the hands of
unauthorized persons.
This notice also proposes, in Sec. 108.213(f), that firearms
tendered for transport in checked baggage shall be carried in a locked
container that is hard-sided. The use of a hard-sided container to
transport a firearm will protect the firearm from being damaged,
inhibit the identification of baggage carrying firearms, and reduce the
opportunity for unauthorized access to the firearm.
Proposed paragraphs (e) and (g) are not new and reflect regulatory
requirements found under existing Sec. 108.11(f) and (c), respectively.
Section 108.215 Carriage of Passengers Under the Control of Armed Law
Enforcement Escorts
Under this proposal, existing Sec. 108.21 entitled ``Carriage of
passengers under the control of armed law enforcement escorts'' would
be renumbered as new Sec. 108.215 under new Subpart C, Operations.
Some confusion has arisen from the existing regulations about
escorting prisoners. Air carriers have established their own policies
on prisoner transport. Some air carriers require the prisoner to be
restrained during the flight; others will not permit this practice.
While these varying policies have complied with the requirements of
this part, law enforcement officers have not been sure about the
various air carrier procedures. The FAA proposes to provide more
detailed requirements in part 108. Proposed Sec. 108.213 would apply to
armed escorts, of course. Proposed Sec. 108.215 would provide
additional requirements for the escort of prisoners.
The number of escorts required for prisoner transport is determined
by the risk presented by the person being escorted. Currently, a
prisoner considered a ``maximum risk'' by the agency directing the
transportation of the prisoner, requires two escorts. ``Maximum risk''
has no standard definition. The FAA proposes, in Sec. 108.215(a)(2), to
adopt the ASAC's recommendations and replace the term ``maximum risk''
with the term ``high risk.'' A prisoner is considered a ``high risk''
if the prisoner is an escape risk, or is charged with, or convicted of,
a violent crime. The determination that a prisoner is ``high risk'' is
made by the agency directing the transportation of the prisoner. The
FAA believes that this change of definition will lead to consistent
interpretation by the law enforcement community.
This section proposes that a person who is a ``high risk'' shall be
under the control of at least two armed escorts. In addition, such
individuals' use of hands would be restrained by an appropriate device
which is attached to a separately locked waist restraint device. To
provide for emergency egress, leg irons would not be permitted.
This section proposes that prisoners not considered ``high risk''
would be termed ``low risk.'' A ``low risk'' prisoner would be under
the control of at least one armed law enforcement escort. No more than
two of these prisoners would be escorted by a single armed law
enforcement officer.
Moreover, this section proposes, in paragraph (a)(11)(i), that, as
with ``high risk'' prisoners, ``low risk'' prisoners'
[[Page 41741]]
hands would also be restrained with an appropriate device attached to a
separately locked waist restraint device, allowing minimum movement of
the prisoners' hands. The FAA believes that this type of a restraint,
and not leg irons, for the ``low risk'' prisoner would not compromise
the safety of all other passengers on the flight or the requirements of
the air carrier to be able to conduct an emergency evacuation without
undue interference.
Currently, part 108 requires that the seating of each prisoner
under the control of law enforcement personnel must be placed in the
rear-most passenger seat when boarding at the airport where the flight
originates. Air carrier representatives to the ASAC have noted that,
under part 108 requirements, passenger seating assignment problems
continue to occur for flights involving the full itinerary of a person
under law enforcement escort.
Accordingly, in paragraph (a)(11)(iii), the FAA proposes to change
the seating requirement for prisoners under escort and provide for
seating the prisoner in the rear-most seat available. This will permit
the air carrier latitude in assigning seats to escorts and prisoners
under their control throughout the flight itinerary of the escorted
prisoner.
To further ease the implementation of the air carrier logistics for
the transport of escorted prisoners, and minimize the opportunity or
occasion for the prisoner to create a security risk to other
passengers, paragraph (a)(4) proposes that the armed law enforcement
escorts(s) notify the air carrier at least 24 hours before the
scheduled departure, or as far in advance as possible, and notify the
air carrier of any preexisting medical conditions of the prisoner
generating unusual behavior that could pose a threat to the security of
the flight.
Section 108.217 Transportation of Federal Air Marshals
Under this proposal, existing Sec. 108.14 entitled ``Transportation
of Federal Air Marshals'' would be renumbered as new Sec. 108.217 and
included under new Subpart C, Operations.
Existing Sec. 108.14 provides authority for the transportation of
Federal Air Marshals (FMA's) on designated flights. This has been a
requirement since 1985 following the terrorist attack on TWA flight
847. This notice proposes to prohibit divulging the identify, seating,
and purpose of FAM's to any person who does not have an operational
need to know.
The FAA believes that the active flight crew should be informed of
the presence of FAM's on a designated flight. Moreover, FAM's are made
aware of all other law enforcement personnel flying armed on a
designated FAM flight. Proposed Sec. 108.213 (a)(6) and (a)(7) would
not require that persons flying armed be informed of the FAM's
presence, although FAM's would be informed of the presence of other
armed persons. The FAA strongly believes that the protection offered by
FAM's is greatly reduced when their presence and location aboard the
aircraft is revealed to those who do not have a need to know.
Under the existing authority of the Administrator and consistent
with current practice, this notice proposes to require, under
Sec. 108.217(b), the transportation of FAM's on another flight
designated by the FAA when a previously designated flight is canceled.
To ensure the effectiveness of FAM missions, the proposal would
make clear that the FAM's would be permitted to observe the preflight
searches of aircraft for weapons and explosives.
Section 108.219 Security of Aircraft and Facilities
Under this proposal, existing Sec. 108.13 entitled ``Security of
Airplanes and Facilities'' would be renumbered as new Sec. 108.219 and
included under new Subpart C, Operations.
Controlling access to proposed critical security areas is essential
to security. Under existing Sec. 108.13, the air carrier is required to
prohibit unauthorized access to its airplanes. This section proposes to
require the air carrier to prevent access to any area it controls for
security purposes, in addition to its aircraft.
This notice proposes incorporating in part 108 several requirements
previously implemented in air carrier security programs. Accordingly,
it is proposed that the air carrier must prevent, rather than prohibit,
access to areas controlled by the air carrier under an approved airport
security program.
The proposed rule includes language requiring the air carrier to
prevent access by unauthorized persons to baggage or cargo tendered for
transport aboard a passenger aircraft. Security measures applicable to
cargo transported on passenger aircraft are currently contained in the
air carrier's approved security program. This proposed requirement to
include security measures in air carrier's procedures for the
acceptance and transport of cargo reflects current practices and
requirements implemented in air carrier security programs in 1994.
The proposed rule would add a new paragraph (g) to proposed
Sec. 108.219 to require air carriers to comply with the vehicle
identification procedures contained in the airport operator's approved
security program. Vehicle identification procedures are integral to
controlling the movement in the restricted operations area. The
proposed language in this section will require the air carrier to be in
compliance with proposed Sec. 107.211 which regulates the issuance and
control of airport operator-approved personnel and vehicle
identification systems.
Section 108.221 Employement History, Verification, and Criminal
History Records Checks
The White House Commission on Aviation Safety and Security
recommended, and the Federal Aviation Reauthorization Act of 1996
required, that the FAA adopt rules to provide for expanded background
checks and criminal history records checks of person with
responsibilities for screening passengers and property. On March 14,
1997, the FAA issued a Notice of Proposed Rulemaking to respond to
these mandates (62 FR 13262, March 19, 1997). The comments received in
response to that notice will be considered in developing a final rule.
However, while that notice refers to unescorted access to the SIDA,
under this proposal the term SIDA would no longer be used. It is
proposed instead that the rule would refer to unescorted access to
critical security areas.
Section 108.223 Personnel Identification System
This new section to part 108 proposes that air carriers establish
and implement a personnel identification system.
The problem centers on the lack of standard specific audit and loss
control procedures for the identification media used by employees of
the air carriers. ASAC members offering comment on the FAA discussion
paper agreed that differing methods for control of identification media
issued by the air carriers to their employees has the potential to
create a security problem. Accordingly, the ASAC members expressed the
belief that regulations should require standard and specific audit/loss
control procedures for identification issued by the air carrier.
This notice proposes that air carriers establish a personnel
identification system mirroring the standards for accountability of
airport-issued identification media. This new section to part 108 would
require the air carrier to use a personnel identification system for
its flight and cabin crewmembers that provides for the following:
Issuance of the identification media only after satisfactory completion
of background
[[Page 41742]]
checks; control and accountability standards for an identification
media established in a FAA-approved security program; accurate
identification and expiration dating of the identification media which
can be readily recognized as current; and the periodic review and
recertification of the identification media to determine its status for
renewal or forfeiture.
The FAA believes that these proposed requirements for air carrier-
issued identification media will meet the same standards as those
identification control procedures currently being implemented for
airport operators and will minimize the opportunity for a breach of air
carrier security procedures.
Section 108.225 Security Coordinators and Crewmembers, Training
This new section proposes to consolidate into new Subpart C,
Operations, elements of existing training requirements for security
coordinators and crewmembers found under current Secs. 108.23 and
108.29. Sections 108.23 and 108.29 currently govern security training
and knowledge of provisions of security-related information and are
directed toward flight crewmembers and security coordinators. Proposed
Sec. 108.225 would incorporate the regulatory requirements for flight
crewmembers and security coordinators currently contained in
Secs. 108.23 and 108.29 and would not otherwise change the regulatory
requirements for security coordinator and crewmember training.
Section 108.227 Training and Knowledge of Persons With Security-
related Duties
The FAA requires extensive training directed in air carrier
security programs for personnel who conduct screening, perform
extraordinary security procedures, or who supervise screening and
extraordinary measures.
This notice proposes to consolidate the training elements for
security personnel of existing Secs. 108.23 and 108.29 into new Subpart
C, Operations, under proposed Sec. 108.227. This new section would
expand personnel training requirements in part 108 to require air
carriers to train any person performing security functions in
accordance with their approved security programs. Any individual
performing a security function should have the ability and knowledge to
perform that function properly and effective training programs require
qualified instructors with thorough knowledge of the subject matter.
This notice proposed that required security training be approved by the
Administrator.
The FAA proposes to give air carriers some flexibility in
establishing security training schedules to facilitate the integration
of security training with other required training. A 1-calendar-month
grace period would be established to facilitate the scheduling of
training. This would permit the air carrier to provide training from 1
month before to 1 month after the calendar month in which that training
was due, and the trainee would receive credit for the training as if it
has been provided during the month due.
Subpart D--Threat and Threat Response
Section 108.301 Security Coordinators
Under this proposal, current Secs. 108.10 and 108.29 would be
consolidated into new Subpart D, Threat and Threat Response, under
proposed Sec. 108.301. This proposed section would consolidate the
duties and responsibilities of the Ground Security Coordinator and the
In-flight Coordinator from existing Secs. 108.10 and 108.29. This
section also would require the air carrier to designate an Air Carrier
Security Coordinator to ensure that the FAA can contact a responsible
security official at the corporate level whenever the need arise.
Currently, Sec. 108.29 (a)(2)(ii) provides for the Ground Security
Coordinator to immediately initiate corrective action for
noncompliance. At foreign airports, the air carrier may not be
performing all security measures and may be unable to achieve
corrective action. Under this proposal, where security measures are
provided by a host government agency or contractor, the air carrier
shall notify the Administrator for assistance in resolving
noncompliance issues. The Administrator could then work with the host
government to address the issues.
Section 108.29(b) states that the requirements of Sec. 108.29(a),
regarding the duties of the Ground Security Coordinator, apply to
security functions performed by both direct employees and contract
employees of the air carrier. The proposed section would omit this as
unnecessary. The air carrier is responsible for carrying out various
security duties, and is responsible for managing the employees who do
so whether they are direct or contract employees.
Section 108.303 Bomb or Air Piracy Threats
Under this proposal, existing Sec. 108.19 entitled ``Security
threats and procedures'' would be renumbered as new Sec. 108.303 under
new Subpart D, Threat and Threat Response. The title of proposed
Sec. 108.303 would be changed to ``Bomb or air piracy threats.''
Air carriers are required to conduct a search after receiving a
specific and credible bomb threat and the airport operator is
responsible for law enforcement support. To ensure proper coordination,
this notice would include the existing air carrier security program
requirement that the air carrier notify the airport operator
immediately of a specific and credible bomb threat to its aircraft or
ground facilities.
Additonally, the air carrier would be required, under this proposed
section, to deplane all passengers from a specifically threatened
aircraft to ensure their safety and a more effective search of the
aircraft. The air carrier's security experts, generally in consultation
with the FAA and other government entities, evaluate threat information
against specific FAA-established criteria to determine specificity and
credibility of the threat.
Current rules do not address threats made against a ground facility
(other than as part of a threat to a flight). Proposed paragraph (c)
would also include requirements for responding to a specific and
credible threat against a specific ground facility. This could include
informing all other air carriers at the facility and conducting a
security inspection.
The FAA recognizes that local, municipal, or State ordinances may
impose upon air carriers or airport operators other reporting
requirements for dealing with bomb or air piracy threats. The proposed
FAA requirement that the air carrier report to the airport operator
only specific and credible bomb threats to its aircraft or its ground
facility would not absolve any air carrier from its responsibilities
regarding the reporting of bomb or air piracy threats under local,
municipal, or State regulations or ordinances.
Section 108.305 Security Directives and Information Circulars
Under this proposal, existing Sec. 108.18 entitled ``Security
Directives and Information Circulars'' would be renumbered to new
Sec. 108.305 under new Subpart D, Threat and Threat Response.
The FAA has found that, in some instances, valuable time has been
lost by air carriers not receiving Security Directives in a timely
manner. Currently the FAA requires air carriers to acknowledge receipt
of Security Directives within 24 hours. However, that leaves too large
a time within which the FAA may not be aware that air carrier personnel
have actually received the security Directive. To
[[Page 41743]]
assure that Security Directives are received promptly, the FAA proposes
to require air carriers to verbally acknowledge receipt of Security
Directives immediately and to follow up with written confirmation
within 24 hours. This will ensure that the FAA knows that the timely
delivery of critical security information to air carriers has occurred.
Air carriers currently are required to specify the method by which
they have implemented the measures in the Security Directive. The FAA
proposes that the air carrier also submit to its Principal Security
Inspectors copies of written measures/implementing procedures issued to
their stations. This proposal will assist the FAA in determining that
the air carrier fully understands the security requirements in the
Security Directive and that the proposed implementation is correct.
The proposed measures also would modify the existing Security
Directive process. Existing part 108 provides that the air carrier
shall specify, not later than 72 hours after delivery of a Security
Directive, the method by which the measures in the Security Directive
``have been implemented,'' unless the Security Directive provides a
different time. This appears to assume that, within 72 hours after
receipt of the Security Directive, procedures have, in fact, been
implemented. However, if the Security Directive does not require
implementation within 72 hours, it is not clear from the existing rule
when the implementation methods must be provided to the FAA. The
proposed rule would make clear that, unless the Security Directive
provides otherwise, within 72 hours after receipt of the Security
Directive, the air carrier would provide the FAA the implementation
methods that are either in effect or will be in effect when the
Security Directive is implemented. In response, the FAA would either
approve the air carrier's proposed alternative measures or notify the
airport operator to modify the alternative measures to comply with the
requirements of the Security Directive within 48 hours after receiving
proposed alternative measures.
Moreover, language is proposed regarding those instances when the
air carrier is compelled to submit, for approval by the Administrator,
alternative measures for compliance with a Security Directive. Under
the proposed language, the Administrator would either approve the air
carrier's proposed alternative measures or notify the air carrier to
modify the alternative measures to comply with the requirements of the
Security Directive within 48 hours after receiving the air carrier's
proposed alternative measures.
Section 108.307 Security Contingency Plan
Contingency plans are an existing part of airport and air carrier
security programs. They contain security measures that can be
immediately and flexibly applied to counter threats that arise quickly.
In the interest of security, the security-sensitive details of the
contingency plan cannot be included in a public regulation, but
proposed new Sec. 108.307 would include in the proposed rule a 1987
security program amendment (amended in 1994) requiring air carriers and
airport operators to have and implement a plan. An amendment to the
approved air carrier standard security program (March 1994) required
air carriers to also have and implement a plan.
The application of contingency measures in response to the Persian
Gulf War provided valuable lessons on contingency planning and the FAA
used this information to make changes to air carrier and airport
security programs. Recently, the FAA and the air carriers thoroughly
reviewed these plans to incorporate changes and ``lessons learned''
from response to the elevated threat during the Persian Gulf War. The
method for implementation of these was modified to allow for a greater
degree of flexibility, and new test procedures also were adopted. The
ASAC endorsed the final product of this effort and supported the
codification of contingency plan requirements for this proposed
revision of part 108.
This proposed new section would require air carriers to implement
FAA-issued contingency measures contained in their security programs
when directed by the Administrator. It also proposes that air carriers
test these contingency plans to ensure that all parties involved are
aware of their responsibilities and that information contained in the
plan is current. Air carriers also would be required to participate in
airport operator's tests, to ensure that they understood how to respond
to contingencies at each airport.
Cross Reference
To identify where present regulations would be relocated in this
proposed rulemaking, the following cross-reference list is provided:
Cross Reference Table
------------------------------------------------------------------------
Old section citation New section citation
------------------------------------------------------------------------
108.1.................................... 108.1
108.3.................................... 108.3
108.5.................................... 108.101
108.7.................................... 108.103
108.9.................................... 108.201
108.10/.29............................... 108.301
108.11................................... 108.213
108.13................................... 108.219
108.14................................... 108.217
108.15................................... 108.211
108.17................................... 108.205
108.18................................... 108.305
108.19................................... 108.303
108.20................................... 108.207
108.21................................... 108.215
108.23/.29............................... 108.225/227
108.25................................... 108.105
108.27................................... 108.5
108.29/.23............................... 108.225
108.31................................... 108.209
108.33................................... 108.221
N/A...................................... 108.203
N/A...................................... 108.223
N/A...................................... 108.7
N/A...................................... 108.9
N/A...................................... 108.307
------------------------------------------------------------------------
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 ICAO
Standards and Recommended Practices to the maximum extent practicable.
As mentioned in the section-by-section analysis of Sec. 108.101 above,
this proposal is consistent with the ICAO security standards. As
discussed above in the ``Section-by-Section analysis'' under
Sec. 108.101, the ICAO standards do not differentiate security
requirements by aircraft seating capacity and they require the
screening of passengers for all international flights. The FAA is not
aware of any diffences that this proposal would present if adopted. Any
differences that may be presented in comments to this proposal,
however, will be take into consideration.
Paperwork Reduction Act
In this NPRM, Aircraft Operator Security/Part 108 Revision,
proposed Secs. 108.5, 108.103, 108.105, 108.205, 108.227, 108.303, and
108.305 contain information collection requirements. As required by the
Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d) ), the FAA has
submitted a copy of these proposed sections to the Office of Management
and Budget (OMB) for its review.
The information to be collected is needed to allow air carriers
with
[[Page 41744]]
approved security programs to check radiation leakage on X-ray
equipment used for property security screening at least annually, to
report aircraft piracy as part of the required security program, and to
maintain security training records.
The estimated annual reporting and recordkeeping burden hours is
estimated to be 8121, and is broken down as follows:
(1) Reporting and recordkeeping requirements for the training
records for crewmembers, security coordinators, and individuals
performing security-related function--24 hours for each part 108 air
carrier operator.
(2) Preparation of necessary air carrier standard security program
implementing documentation--6 hours for each part 108 air carrier
operator.
(3) Maintaining copies and availability of the security programs
for use by civil aviation security inspectors of the FAA upon request--
1 hour for each part 108 air carrier operator.
(4) Air carrier preparation of request for security program
amendment--1 hour for each part 108 air carrier operator.
(5) Recordkeeping by the air carrier of each X-ray survey conducted
for use by FAA officials upon request--.5 hours for each part 108 air
carrier operator.
(6) Recordkeeping by the air carriers showing self-evaluation of
security functions performed at each air carrier station and training
to all personnel performing security functions--.5 hours for each part
108 air carrier operator.
(7) Reporting of acts or suspected acts of aircraft piracy to the
FAA. This report is not normally in written form and it determined to
be a request for assistance--.2 hours for each part 108 air carrier
operator.
(8) Air carrier acknowledgment of receipt of Security Directives--
1.1 hours for each part 108 air carrier operator.
It is estimated that this proposal will affect 266 part 108
aircraft operators annually.
Organizations and individuals desiring to submit comments on the
information collection requirements should direct them to the Office of
Information and Regulatory Affairs, OMB, Room 1235, New Executive
Office Building, Washington, DC 20503; Attention: Desk Officer for
Federal Aviation Administration. These comments should reflect whether
the proposed collection is necessary; whether the agency's estimate of
the burden is accurate; how the equality, utility, and clarity of the
information to be collected can be enhanced; and how the burden of the
collection can be minimized. A copy of the comments also should be
submitted to the FAA Rules Docket.
OMB is required to make a decision concerning the collection of
information contained in this NPRM between 30 and 60 days after
publication in the Federal Register. Therefore, a comment to OMB is
best assured of having its full effect if OMB receives it within 30
days of publication. This does not affect the deadline for the public
to comment to the NPRM.
Regulatory Evaluation Summary
Proposed changes to Federal regulations must undergo several
economic analyses. First, 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. 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. In conducting
these analyses, the FAA has determined that this Notice of Proposed
Rulemaking (NPRM) would generate benefits that justify its costs and is
``not a significant regulatory action'' as defined in the Executive
Order. The FAA estimates that the NPRM would not have a significant
economic impact on a substantial number of small entities. No part of
the proposed rule is expected to constitute a barrier to international
trade. In addition, this proposed rule does not contain any Federal
intergovernmental or private sector mandates. Therefore, the
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do
not apply. These analyses, available in the docket, are summarized
below.
Costs
The total cost of compliance of the proposed rule over the next 10
years is estimated to be $42.8 million (1994 dollars). On a discounted
basis (7 percent rate of interest), the proposed rule would impose a
cost of $31.3 million. Of the 26 sections amended by the proposed rule,
only five sections would result in cost impacts. The other 21 sections
would not impose costs because they contain minor definitional,
clarification, and procedural changes. They also would codify existing
practices as contained in the air carrier standard security program
(ACSSP). Those sections that would potentially impose costs are
discussed below.
Section 108.101 Adoption and Implementation
Depending on aircraft seating configuration, current regulations
specify the requirements of a security program (full, modified, or
none) that is required. The proposed changes to this section would
increase the number of aircraft operators that must adopt and maintain
security programs. It would also require any private charter operation
deplaning or enplaning through a sterile area to adopt and implement a
full security program. Specifically, section 108.101 would require that
these aircraft operators adopt and implement security programs: (1)
Scheduled U.S. passenger and public charter operations using an
aircraft having passenger seating configuration of greater than 60
seats; (2) Scheduled U.S. passenger and public charter operations using
an aircraft having a passenger seating configuration of less than 61
seats when passengers are enplaned or deplaned into a sterile area; and
(3) A scheduled U.S. passenger, public charter, or private charter
operation with an aircraft having a passenger seating configuration of
less than 61 seats engaged in operations to, from, or outside the U.S.
Section 108.101 would require these aircraft operators to adopt and
implement modified security programs.
Because these carriers are not currently required to maintain a
security program, the incremental cost of this section would be the
cost to adopt and maintain a security program. In addition, any
operators seeking certification in these size categories in the future
would bear the same incremental cost. Of the estimated 2,970 U.S.
certificated air carriers, approximately 51 would be affected by the
proposed rule change. Since the major and national air carriers and the
large regional carriers already implement security programs, the major
impact of this section would be on the small operators.
As the result of this proposal, an estimated 51 existing operators
would incur a potential cost of compliance of $145,503 (or $105,428,
discounted) over the next 10 years. This cost estimate of $145,503 was
derived by multiplying the one-time application cost of $273 and the
recurring staff cost of $258 times the number of potentially impacted
operators of 51 over the 10-year period. Similarly, new applicants
would also be impacted. This evaluation assumes that three to four new
applicants would file for certification in this carrier group annually.
This action would result in an estimated potential
[[Page 41745]]
cost of compliance of $18,585 (or $13,116, discounter) over the next 10
years. This cost estimate of $18,585 was derived by multiplying the
one-time application cost of $273 and the recurring staff cost of $258
times the number of potentially impacted new applicant operators of 35
(or 3 to 4 annually) over the 10-year period. Thus, the total potential
cost of compliance for this section is $164,088 (or $118,545,
discounted).
The cost estimate $164,000 does not take into account the cost of
training associated with adopting and implementing a security program.
This is because there is uncertainty about the number and magnitude of
the impacted operators. Based primarily on the informed judgement of
FAA technical personnel, there would be little or no training cost
associated with implementing and adopting the security program for most
of the impacted operators. For most of these small operators, only one
person (who performs a multitude of functions) would develop and
implement the security program. For this person, little or no training
would be required. However, in those instances in which other persons
have to become familiar with the security program, there would
additional costs for training. It is not known as to how many of these
other persons would have to be trained and the amount of training
needed. As the result of this uncertainty, the FAA solicits comments
from the aviation community as the full impact of the proposal on
impacted part 108 operators.
Section 108.277 Training and Knowledge of Persons With Security-
Related Duties
The regulation governing security training currently is directed
toward flight crewmembers and Security Coordinators. The FAA requires
extensive training for personnel who conduct screening, supervisors,
and other persons performing extraordinary security procedures in air
carriers to train any person performing security functions in
accordance with their approved security programs. Security training
would be conducted by an instructor trained and approved by the
Administrator. The potential incremental cost for this proposed section
is estimated to be $13.3 million, or $10.1 million (discounted), over
the next 10 years. This estimate of $13.3 million was derived in four
steps. First, the FAA Training cost estimate of $570,620 was derived by
multiplying the FAA's Instructor Salary Cost per training session
($1,030) times the number of training sessions (554) over the next 10
years. Second, the Initial Air Carrier Training cost estimate of $4.7
million was derived by adding the cost of training employees ($4.3
million) to the cost for an instructor ($422,000) over the 10-year
period. Third, the cost estimate of $8 million for annual air carrier
training requirements was derived by combining the employee training
cost estimate ($7.3 million) with that for an instructor ($700,000)
over the 10-year period. And, last, all three of these cost components
were summed.
While this section of the evaluation has attempted to account for
the potential cost that bomb threats would have on passengers, it does
not address the potential impact on air carrier operators. This
omission is due to the fact that the FAA has no data from which to
reasonably estimate what the potential cost impact would be in the
event of bomb threats. Because of this omission, there is uncertainty
as to the impact, in the form of delays, bomb threats would have on
aircraft operators and other entities. As the result of uncertainty
associated with the potential cost of delays caused by bomb threats,
the FAA solicits comments from the aviation community. Commenters are
asked to focus on the potential cost of delays this proposed section
would impose on aircraft operators and other entities (including
passengers). The FAA requests that comments be as detailed as possible
and cite or include supporting documentation.
Section 108.303 Bomb or Air Piracy Threats
Air carrier operators follow a set of standard procedures, mandated
by the FAA, in the event that an operation is threatened by an act of
terrorism (bomb threat, hijacking, etc.). Currently, this does not
always require that the aircraft be cleared. The FAA proposes to amend
these procedures to require that an operator deplane all passengers on
board a threatened aircraft so that the appropriate security personnel
may conduct a security inspection.
Section 108.305 Security Directives and Information Circulars
This revision proposes that all air carrier operators develop and
implement standardized procedures to deal with security directives and
information circulars issued by FAA. The FAA proposes that operators
respond immediately to a directive by acknowledging its receipt by
phone and, within 72 hours (unless otherwise specified), to provide a
written summary of procedures implemented to the FAA. The potential
incremental cost of this proposed rule change is estimated to be
$665,300 (or $467,300, discounted). This estimate of $665,300 to Notify
the Principal Security Inspector (PSI), including acknowledgment and
forwarding of results, was derived by combining the cost estimates for
Staff to Process Directives ($388,000) with that for phone calls and
faxes ($277,000).
Section 108.307 Security Contingency Plan
This section would require air carrier operators to adopt
contingency plans developed by the FAA to test them periodically in
coordination with the respective airport operator testing of
contingency plans. Thus, based on the informed opinion of FAA security
personnel, twelve hours would be required for each test of the
contingency plan each year; the proposed revisions to this section
would impose an incremental cost of $26.3 million to operators over 10
years (or $19.0 million, discounted). This estimate of $26.3 million to
ensure conformity with airport plans was derived by employing two
steps. The first step estimated the one-time cost for ensuring
conformity by conducting air carrier initial review of contingency
plans. In the first year (1996) only, cost estimation for this step
represents multiplying the number of impacted air carriers (185) times
the number of airports involved (25) times the number of hours of work
required to review plan (16) times the hourly salary of air carrier
security personnel ($32.25). For example, this computation would result
in an estimated one-time compliance cost of $2,386,500
(185 x 25 x 16 x $32.25), over the 10-year period, for the initial
review of contingency plans. And, the second step of ensuring
conformity consists of testing the contingency plan. Over the next 10
years, cost estimation for this step represents multiplying the number
of impacted air carries (1,850=185 x 10) times the number of airports
involved (25) times the number of hours of work required to test plan
(16) times the hourly salary of air carrier security personnel
($32.25). For example, this computation would result in an estimated
one-time compliance cost of $23,865,000 (1,850 x 25 x 16 x $32.25),
over the 10-year period, for testing of contingency plans. Thus, the
total compliance cost for this section was derived by summing the two
cost components ($26,251,500=$2,386,500+$23,885,000).
[[Page 41746]]
Benefits
The proposed rules to amend parts 107 and 108 are intended to
enhance aviation safety for U.S. airports and air carriers in ways that
are not currently addressed. The potential benefits of the proposed
rules would be a strengthening of both airport and air carrier security
by adding to their effectiveness. Security for U.S. airlines is
achieved through an intricate set of interdependent requirements.
It would be difficult to separate out any one change or set of
changes in the proposed rules to amend part 107 or part 108 and
identify to what extent that change or set of changes, alone, would
prevent a criminal or terrorist act in the future. Certainly, it would
be difficult to show, for example, that air carrier contingency plans
(proposed Sec. 108.307) or training procedures (proposed Sec. 108.227)
would be solely responsible for preventing a future criminal or
terrorist incident. Nevertheless, these changes in both proposed rules
are an integral part of the total program needed by the airport
operator and the FAA to thwart such incidents.
I would also be extremely difficult to determine to what extent an
averted terrorist incident could be credited to either airport operator
security or to air carrier security. Accordingly, the benefits from the
proposed rules for parts 107 (airport operators) and 108 (air carriers)
have been combined in this benefit-cost analysis. These benefits are
comprised of the criminal and terrorist incidents that these rules are
intended to prevent; hence, these benefits will be contrasted against
the costs of the proposed changes to parts 107 and 108.
Since 1987, the FAA has initiated rulemaking and promulgated five
security-related amendments that have amended both parts 107 and 108.
These amendments added to the effectiveness of both parts in that they
were designed to address certain aspects of the total security system
to help prevent further criminal and terrorist activities. In 1996,
both Congress and the White House Commission on Aviation Safety and
Security (Gore Commission) recommended further specific actions to
increase aviation security. President Clinton, in July 1996, declared
that the threat of both foreign and domestic terrorism to aviation is a
national threat.
Benefits of Preventing Criminal and Terrorist Incidents
The requirements in parts 107 and 108 allow the FAA to combat
criminal and terrorist incidents with a variety of actions. The primary
incidents that recent rulemakings have addressed include bombings,
hijackings, and sabotage. In order to increase the accuracy of the
analysis, these criminal and terrorist incidents have been divided into
classes.
Bombing incidents involving explosive have been grouped into two
main categories:
Class I Explosion incidents include tragedies, such as the
explosion of Pan Am Flight 103, that involve the loss of an entire
aircraft and incur a large number of fatalities; and
Class II Explosion incidents include terrorist attempts
that were partially averted (explosions that only partially damaged an
aircraft) or that occurred outside the aircraft (usually in the airport
itself), and that included some injuries and/or fatalities. An example
of such an incident is TWA Flight 840, which resulted in 4 fatalities
and injuries.
These two types of incidents differ significantly both in terms of
costs and in terms of their predictability. Depending on the exact
circumstances, the costs for a Class II Explosion can vary widely. The
costs of a single Class I Explosion incident substantially exceed those
of a Class II Explosion incident.
Six explosions have taken place on U.S. air carriers between 1979
and 1988; five of these were Class II Explosion incidents, while one
(in 1988) was a Class I Explosion incident.
Most hijackings do not involve any deaths or injuries, the cost is
calculated based on operating costs (crew salaries, fuel, and
maintenance), passenger time loss, and the loss of future revenues.
However, a few hijackings over the last 15 years have involved
fatalities or injuries. One incident resulted in a large number of
fatalities and injuries. Hijacking incidents have been divided into
three main categories:
Class I Hijacking incidents are typified by the September
5, 1986 hijacking of a Pan Am flight in Karachi, Pakistan that caused a
large number of fatalities and injuries (this flight had 22 fatalities
and 125 injuries);
Class II Hijacking incidents include hijackings that are
based on other casualty-related incidents when one or a few death(s) or
injury(ies) occur. An example of an incident in this category would be
the 1985 hijacking of a TWA flight en route from Athens to Rome that
was hijacked to Lebanon.
Class III Hijacking incidents involve the forcible
diversion of an airplane with no loss of life or injuries. The majority
of hijackings fall into this category; hijackings typical of this
category include many in which the hijacker's destination was Havana,
Cuba.
Sabotage, in this evaluation, refers strictly to an incident like
the PSA 1771 incident. Sabotage incidents have been subdivided into two
categories:
Class I Sabotage incidents involve a major loss of life,
typified by the PSA 1771 incident; and
Class II Sabotage incidents include a few injuries, such
as the incident at National Airport in 1990 where a former employee of
Ogden Allied Services gained access to the AOA.
In order to estimate the magnitude of potential safety benefits
that would be generated by the proposed rule, this evaluation employed
two steps. First, the historical record was examined related to the
number of criminal and terrorist incidents from 1985 to 1994. Those
incidents were examined and summed for each of the seven categories
shown in Table 1 (Column A). Second, each of those seven categories of
incidents were assigned monetary values (as shown in Table 1, Column
B). And last, the number of incidents in each of the seven categories
were multiplied times their respective monetary values and summed. This
last computation resulted in estimated potential benefits of $1.871
billion (or $1.334 billion, discounted) over the next 10 years in 1994
dollars. In this computation, the present value of each category of
incident was calculated using the current discount rate of 7 percent.
In order to provide the public and government officials with a
benchmark comparison of the expected safety benefits of rulemaking
actions over an extended period of time with estimated costs in
dollars, the FAA currently uses a value of $2.7 million and $518,000 to
statistically represent a human fatality and a major injury avoided,
respectively.
Table 1 shows the benefits of preventing potential Class I
Explosion incidents, Class I through III Hijacking incidents, and Class
I and Class II Sabotage incidents. The number of projected incidents
are the same as the number of historical or past incidents.
[[Page 41747]]
Table 1.--Monetary Value of Incidents by Type and Category
[1994 Dollars]
----------------------------------------------------------------------------------------------------------------
(Column A)
number of (Column B) (Column C)
Type of incidents by category past monetary value monetary value
projected (undiscounted) (discounted) per
incidents per incident incident
----------------------------------------------------------------------------------------------------------------
Class I Explosions........................................... 1 1,416,572,478 $994,941,230
Class II Explosions.......................................... 2 7,731,000 5,429,931
Class I Hijackings........................................... 1 124,784,223 87,643,214
Class II Hijackings.......................................... 1 3,467,403 2,435,357
Class III Hijackings......................................... 18 249,403 175,168
Class I Sabotage............................................. 1 304,915,169 234,083,083
Class II Sabotage............................................ 1 1,035,000 727,642
----------------------------------------------------------------------------------------------------------------
Summing the product of the projected incidents by their
undiscounted and discounted values yield total benefits of $1.871
billion and $1.334 billion, respectively.
Changing Dynamics of Aviation Security Activity
In this evaluation, the potential safety benefits were estimated
based on the historical record of 25 criminal and terrorist incidents
from 1985 to 1994.
Members of foreign terrorist groups and representatives from state
sponsors of terrorism are present in the United States. There is
evidence that a few foreign terrorist groups have well-established
capability and infrastructures to support terrorism. In addition, the
presence of international extremists in the Untied States is growing,
and the potential threat from them is increasing. The activities of
some of these individuals and groups go beyond fund-raising to
recruiting other persons (both foreign and U.S.) for activities that
include training with weapons and making bombs. Some of these
extremists operate in small groups and act without guidance or support
from state sponsors. This makes it difficult to identify them or to
anticipate and counter their activities.
Investigation into the February 1993 attack on the World Trade
Center (WTC) uncovered a foreign terrorist threat in the U.S. more
serious than previously known. The WTC investigation and the discovery
in 1995 of Ramzi Yousef's plot to bomb U.S. air carriers operating in
Asia have shown that: (1) Foreign terrorists conducting future attacks
in the U.S. may choose civil aviation as a target despite the many more
easily accessible targets that are equally symbolic of America, (2)
foreign terrorists have demonstrated their ability to operate in the
U.S., and (3) foreign terrorists are capable of building and artfully
concealing improvised explosive devices that pose a serious challenge
to aviation security. Civil aviation's prominence as a perspective
target is clearly illustrated by the circumstances of the Asian
conspiracy: The terrorists persisted in planning to attack aviation
even when there were other targets identifiable with the U.S. in the
area and even when they knew security measures protecting aviation were
at a high level.
In addition, the bombing of a federal office building in Oklahoma
City shows the potential for terrorism from domestic groups. Civil
aviation's prominence would also be evident to domestic groups. so the
threat to civil aviation needs to be prevented and/or countered from
both domestic and foreign sources and potential domestic sources.
The agency recognizes that potential benefits could change as the
result of the changing dynamics of aviation security. While the
benefits estimate contained in this analysis is valid based on those
incidents cited in the historical record, this baseline could change
upon the future assessment of an increased credible security threat(s).
Accordingly, the pool of potential safety benefits could increase and
be applied to any future rulemaking actions related to such threats.
Recent Security-Related Rules--Updated Methodology
Each of the other five security rule that the FAA has promulgated
since 1987 has been updated from its respective base year dollars to
1994 using the implicit price deflator for Gross Domestic Product. The
present value of the costs was recalculated using the current discount
rate of 7 percent. The FAA has developed new data that improved
components of past analyses. Table 2 below summarizes the total updated
costs, which total $727.1 million ($497.8 million, discounted).
Table 2.--Summary of the Costs of Security-Related Rulemaking Actions
[1994 Dollars]
------------------------------------------------------------------------
Costs Costs
Rulemaking action (year) (undiscounted) (discounted)
------------------------------------------------------------------------
Access to Secured Areas on
Airports (1988).................. $667,577,115 $452,643,386
Security Directives (1989)........ 56,050 39,367
Explosives Detection Systems
(1989)\1\........................ N/A N/A
X-Ray Systems (1990)\2\........... 741,342 741,342
Employment Standards (1990)....... 58,679,348 44,339,289
-------------------------------------
Total Cost: Existing Rules.... 727,053,855 497,763,384
------------------------------------------------------------------------
\1\ See Appendix C to full regulatory evaluation.
\2\ For this rulemaking action, discounted and undiscounted costs are
the same. While this procedure is unusual, it is appropriate for the
rule. This assessment is based on the fact that the cost of compliance
impact on U.S. airport operators represents the ``opportunity cost of
capital.'' In order to comply with this rule, impacted airport
operators were expected to purchase X-Ray systems from one to four
years sooner than they otherwise would have.
[[Page 41748]]
Comparison of Costs and Benefits
The benefits sections of this analysis describes how the FAA
calculated a single point value of benefits upon the prevention of the
assumed mean number of each of seven categories of criminal or
terrorist incidents during the next 10 years. As discussed, above, the
undiscounted benefits of avoiding this particular combination of
incidents is $1.871 billion (or $1.334 billion, discounted). A simple
comparison of this single value benefit estimate to the combined
estimated costs of the proposed amendments to parts 107 and 108 ($217.0
million or $174.0 million discounted) suggests that expected benefits
exceed estimated costs.
The FAA performed a computer analysis calculating the probability
and associated benefits of each possible combination of occurrences.
The results of that analysis indicates that the probability exceeds 95%
that obtaining combinations of occurrences where the benefits of
avoiding any of these combinations of occurrence will exceed the
estimated costs of these proposed rules. When the estimated cost of
these two proposed rules ($217 million, undiscounted) are added to the
cost of the five security rules ($727 million, undiscounted) already
issues, the combined cost is $944 million ($727+$217), undiscounted.
The probability of obtaining a combination of occurrence yielding
benefits equal to or greater than $944 million is over 68%. The FAA,
therefore, has determined that the benefits of these two proposed rules
exceed their costs, even when the costs of these two rules are added to
the cost of the previously issued rules.
Initial Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA) was enacted by
Congress to ensure that small entities are not unnecessarily burdened
by government regulations. the RFA requires agencies to review rules
that may have a ``significant economic impact on a substantial number
of small entities.''
In accordance with FAA Order 2100.14A (Regulatory Flexibility and
Guidance, dated July 15, 1983), The FAA's criterion for a ``substantial
number'' is a number that is not less than 11 and that is more than one
third of the small entities subject to the rule. For this evaluation,
small entities refer to U.S. operators of aircraft for hire with nine
or fewer aircraft owned, but not necessarily operated. These small
entities include: (1) Schedules aircraft operators whose entire fleet
has a seating capacity of over 60, (2) Other scheduled aircraft
operators whose entire fleet has a seating capacity of less than 60
(e.g., commuter operators and small majors/nationals types), and (3)
Unscheduled aircraft operators. Unscheduled operators include air taxi
and large charter types.
The criterion for ``significant economic impact'' is defined as the
FAA's assigned annualized net compliance cost threshold to that entity.
When the cost of compliance for a small entity, as imposed by a
proposed rule, is equal to or exceeds this annualized threshold level,
it is considered to be significant. The annualized threshold amount for
scheduled aircraft operators is $121,300. For other scheduled aircraft
operators, this amounts to $67,800. For unscheduled aircraft operators,
this amounts to $4,800. These cost estimates have been converted from
1983 to 1994 dollars.
The proposed rule would potentially impact small U.S. air carriers
engaged in charter services and selected helicopter operators. These
aircraft operators are engaged in services under parts 121 and 135. An
examination of small entities under each of these parts, by size of
aircraft, will be discussed by each proposed section as follows. (The
non-annual costs of the proposed rule have been annualized by
multiplying them by a capital recovery factor of .14238 (10 years, 7
percent).)
Section 108.101 Security Program: Adoption and Implementation
The proposed change to Sec. 108.101 would only affect an estimated
51 operators. This estimate of 51 includes: 15 non-scheduled domestic
service operators with greater than 60 seats, 11 scheduled
international service operators with fewer than 31 seats, and 25 non-
scheduled international service operators (including air taxi
operations). This proposed section would impose an annualized cost of
compliance of $285 for each of the 51 aircraft operators.
Section 108.277 Training and Knowledge of Persons With Security-
Related Duties
The proposed change to Sec. 108.227 would affect an estimated 2,930
aircraft operators. This estimate of 2,930 includes: 74 scheduled
operators with between 31 and 60 seats, 131 scheduled operators with
less than 31 seats, 15 non-scheduled operators with greater than 60
seats, and 2,710 non-scheduled operators with 60 or less seats. This
proposed section would impose an annualized cost of compliance of $470
for each of the 2,930 aircraft operators.
Section 108.303 Bomb or Piracy Threats
The proposed change to Sec. 108.303 would affect all 2,970 U.S.
aircraft operators. This proposed section would impose in annualized
cost of compliance of $8 for each of the 2.970 aircraft operators.
Section 108.305 Information Circulars
The proposed change to Sec. 108.305 would affect an estimated 185
U.S. aircraft operators. This proposed section would impose an
annualized cost of compliance of $360 for each of the 185 operators
that would be affected by this section.
Section 108.307 Contingency Plans
The proposed change to Sec. 108.307 would affect an estimated 185
U.S. aircraft operators. This would impose an annualized cost of
compliance of $14,600 for each of the 185 operators that would be
affected by this section.
The sum of the annualized costs of each section is approximately
$16,000 (rounded). Of the total annualized cost of $16,000, an
estimated $760 (proposed sections 108.101, 108.227, and 108.303) would
potentially impact scheduled and unscheduled aircraft operators. Since
unscheduled aircraft operators are potentially impacted, this
assessment will include the lowest annualized threshold level of $4,800
(from a worst cast standpoint). This cost estimate of $810 is less than
the annualized threshold amount of $4,800. The remaining annualized
cost of $15,240 would only potentially impact scheduled aircraft
operators. This estimate of $15,240 is less than the annualized
threshold estimates for scheduled and other scheduled operators
($121,300 and $67,800 respectively). Thus, the proposed rule would not
impose a significant economic impact on a substantial number of small
entities (scheduled or unscheduled). For this reason, a regulatory
flexibility analysis is not required.
International Trade Impact Assessment
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 proposed rule would have no impact on the competitive posture
of either U.S. carriers doing business in foreign countries or foreign
carriers doing business in the United States. This assessment is based
on several factors. First, it would not have an
[[Page 41749]]
impact on most existing part 121 scheduled operators, since they are
already in compliance. However, it would impact non-scheduled aircraft
operators with more than 60 passenger seats (primarily, large charter
types), non-scheduled aircraft operators with less than 60 seats
(primarily, small air taxi types), some scheduled aircraft operators
with more than 60 seats, and all scheduled aircraft operators with less
than 31 passenger seats (commuter types). U.S. non-scheduled aircraft
operators (regardless of the number of seats) generally do not compete
with foreign non-scheduled aircraft operators. This assessment is also
true for U.S. schedule aircraft operators with less than 31 seats. When
engaged in foreign travel, these operators usually fly from the U.S. to
a foreign destination and return. These operators do not have aircraft
based in foreign countries for flights to the U.S. and other foreign
countries. Thus, neither domestic nor foreign air carriers would be
affected disproportionately by these proposed requirements. These
proposed requirements, therefore, will not cause a competitive
disadvantage for U.S. air carriers operating overseas or for foreign
carriers operating in the United States.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.'' A
``significant intergovernmental mandate'' under the Act is any
provision in a Federal agency regulation that would impose an
enforceable duty upon State, local, and tribal governments, in the
aggregate, of $100 million (adjusted annually for inflation) in any one
year. Section 203 of the Act, 2 U.S.C. 1533, which supplements section
204(a), provides that before establishing any regulatory requirements
that might significantly or uniquely affect small governments, the
agency shall have developed a plan that, among other things, provides
for notice to potentially affected small governments, if any, and for a
meaningful and timely opportunity to provide input in the development
of regulatory proposals or rules.
This proposed rule does not contain any Federal intergovernmental
or private sector mandate. Therefore, the requirements of Title II of
the Unfunded Mandates Reform Act of 1995 do not apply.
Federalism Implications
The regulations proposed herein would 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
proposal would not have sufficient federalism implications to warrant
the preparation of a Federalism statement.
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
proposed regulation is significant under Executive Order 12866. In
addition, the FAA certifies that this proposal, if adopted, 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 proposal is considered significant
under DOT Regulatory Policies and Procedures (44 FR 11034, February 26,
1979).
List of Subjects in 14 CFR Part 108
Air carriers, Aircraft, Airmen, Airports, Arms and munitions,
Explosives, Law enforcement officers, Reporting and record keeping
requirements, Security measures, X-rays.
The Proposed Amendment
In consideration of the foregoing, the FAA proposes to revise 14
CFR part 108 to read as follows:
PART 108--AIRCRAFT OPERATOR SECURITY
Subpart A--General
Sec.
108.1 Applicability.
108.3 Definitions.
108.5 Inspection Authority.
108.7 Falsification.
108.9 Security responsibilities of persons.
Subpart B--Security Program
108.101 Adoption and implementation.
108.103 Form, content, and availability.
108.105 Approval and amendments.
Subpart C--Operations
108.201 Screening of persons and property, and acceptance of cargo.
108.203 Use of metal detection devices.
108.205 Use of X-Ray systems.
108.207 Use of Explosives detection systems.
108.209 Employment standards for screening personnel.
108.211 Law enforcement personnel.
108.213 Carriage of weapons.
108.215 Carriage of passengers under the control of armed law
enforcement escorts.
108.217 Transportation of Federal Air Marshals.
108.219 Security of aircraft and facilities.
108.221 Employment history, verification, and criminal history
records checks.
108.223 Personnel identification system.
108.225 Security Coordinators and crewmembers, training.
108.227 Training and knowledge of persons with security-related
duties.
Subpart D--Threat and Threat Response
108.301 Security Coordinators.
108.303 Bomb or air piracy threats.
108.305 Security Directives and Information Circulars.
108.307 Contingency plan.
Authority: 49 U.S.C. 106(g); 5103, 40113, 40119, 44701-44702,
44705, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.
Subpart A--General
Sec. 108.1 Applicability.
(a) This part prescribes aviation security rules governing:
(1) The operations of holders of FAA air carrier operating
certificates or holders of operating certificates for scheduled
passenger operations, public charter passenger operations, private
charter passenger operations, and other air carriers voluntarily
adopting an aviation security program.
(2) Each person aboard an aircraft operated by an air carrier
described in paragraph (a)(1) of this section.
(3) Each person at an airport at which the operations described in
paragraph (a)(1) of this section are conducted.
(4) In accordance with part 191 of this chapter, each air carrier
that receives a Security Directive or Information Circular and each
person who receives information from a Security Directive or
Information Circular issued by the Assistant Administrator for Civil
Aviation Security.
(b) Except as provided in Sec. 108.105 of this part, the authority
of the Administrator under this part is also exercised by the Assistant
Administrator for Civil Aviation Security and the Deputy Assistant
Administrator for Civil Aviation Security, and any individual formally
designated to act in their capacity. The
[[Page 41750]]
authority of the Assistant Administrator, including matters under
Sec. 108.105 of this part, may be further delegated.
Sec. 108.3 Definitions.
Terms defined in part 107 of this chapter apply to this part. For
purposes of this part, part 107 of this chapter, and security programs
under these parts, the following definitions also apply:
Accepted security program means a security program accepted by the
Administrator for use by a foreign air carrier in accordance with
Sec. 129.25 of this chapter.
Approved security program means a security program approved by the
Administrator for use by scheduled passenger operations, public charter
passenger operations, private charter passenger operations, or all-
cargo carrier operations, in accordance with Sec. 108.105 of this part.
Assistant Administrator means the FAA Assistant Administrator for
Civil Aviation Security as described in 49 U.S.C. 44932.
Passenger seating configuration means the total number of seats for
which the aircraft is type certificated that can be made available for
passenger use aboard a flight and includes that set in certain aircraft
which may be used by a representative of the Administrator to conduct
flight checks but is available for revenue purposes on other occasions.
Principal Security Inspector means the civil aviation security
special agent assigned by the Administrator to be the FAA's primary
point of contact with the air carrier for all matters relating to
aircraft operator security.
Private chapter means any air carrier flight--
(1) For which the charterer engages the total passenger capacity of
the aircraft for the carriage of passengers; for which passengers are
invited by the charterer, the cost of the flight is borne entirely by
the charterer and not directly or indirectly by any individual
passenger; and that is not advertised to the public, in any way, to
solicit passengers.
(2) Flights for which the total passenger capacity of the aircraft
is used for the purpose of civilian or military air transportation
conducted under contract with the Government of the U.S. or the
Government of a foreign country also considered ``private charters.''
Private charter means any charter which is not a private charter.
Scheduled passenger operation means a public air transportation
service (a flight) from identified air terminals at a set time which is
held out to the public and announced by timetable or schedule published
in a newspaper, magazine, or other advertising medium.
Sterile area means a portion of an airport defined in the airport
security program to which access is controlled by either the inspection
of persons and property in accordance with an approved or accepted
security program required under Secs. 108.105 of this part or
Sec. 129.25 of this chapter, or an access control system meeting the
requirements of Sec. 107.205 of this chapter.
Sec. 108.5 Inspection authority.
(a) Each air carrier shall allow the Administrator, including FAA
Special Agents, at any time or place, to make any inspections or tests
to determine compliance of the airport operator, air carrier, foreign
air carrier, and other airport tenants with--
(1) The air carrier security program;
(2) This part;
(3) 49 CFR part 175, which relates to the carriage of hazardous
materials by aircraft; and
(4) 49 U.S.C. Subtitle VII, as amended.
(b) At the request of the Administrator, each air carrier shall
provide evidence of compliance with this part and its air carrier
security program.
(c) On request of any FAA Special Agent, and presentation of valid
FAA-issued credentials, each air carrier shall issue to that agent
access and identification media to provide the special agent with
unescorted access to, and movement within, exclusive areas.
Sec. 108.7 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.
Sec. 108.9 Security responsibilities of persons.
(a) No person may:
(1) Tamper or interfere with, compromise, modify, attempt to
circumvent, or cause a person to tamper or interfere with, compromise,
modify, or circumvent any security system, method, or procedure
implemented under this part.
(2) Enter, or be present within, a critical security area or
restricted operations area without complying with the systems, methods,
or procedures being applied to control access to, or presence in, such
areas.
(3) Use, allow to be used, or cause to be used any airport-approved
access medium or identification medium that authorizes the access or
presence of persons and vehicles in critical security areas or
restricted operations areas in any other manner than that for which it
was issued by the appropriate authority under this part, part 107, or
part 129 of this chapter.
(b) Except as provided in 49 U.S.C. Subtitle VII, and paragraphs
(c) and (d) of this section, no individual may have any deadly or
dangerous weapon, explosive, incendiary, or other destructive substance
on or about the individual's person or accessible property when
entering, or within, a critical security area or restricted operations
area of an airport governed by part 107 of this chapter, or a sterile
area governed under Sec. 108.201 of this part.
(c) The provisions of this section with regard to paragraphs (a)
and (b) of this section do not apply to persons authorized by the
Federal government, airport operator, air carrier, or foreign air
carrier to conduct inspections for compliance with this part, parts 107
and 129 of this chapter, and 49 U.S.C. Subtitle VII, while they are
conducting an inspection.
(d) The provisions of this section with respect to firearms and
weapons do no apply to the following:
(1) Law enforcement personnel required under this part or part 107
of this chapter to carry a firearm or other weapon while in the
performance of their duties at the airport.
(2) Persons authorized to carry a firearm under Sec. 108.213,
Sec. 108.215,or Sec. 129.27 of this chapter.
(3) Persons authorized to carry a firearm in a sterile area,
critical security area, restricted operations area under this part, an
approved airport security program, an approved air carrier security
program, or a security program used in accordance with Sec. 129.25 of
this chapter.
(4) Properly declared firearms in checked baggage for transport
under Sec. 108.213 of this part.
(5) Transportation of hazardous materials under 49 CFR part 175.
(6) Federal Air Marshals while on mission status.
(7) Air carrier aircraft not subject to part 108 and part 129 of
this chapter carrying firearms in accordance with state or local law.
[[Page 41751]]
Subpart B--Security Program
Sec. 108.101 Adoption and implementation.
(a) Each air carrier shall adopt and carry out a security program
that meets the requirements of Sec. 108.103 for any of the following
operations:
(1) A scheduled passenger or public charter passenger operation
with an aircraft having a passenger seating configuration of more than
60 seats.
(2) A scheduled passenger or public charter operation using an
aircraft having a passenger seating configuration of less than 61 seats
when passengers are enplaned from or deplaned into a sterile area.
(3) A private charter operation when passengers are enplaned from
or deplaned into a sterile area.
(4) An air carrier operation, other than that described in
paragraphs (a) (1), (2), and (3) of this section, further identified
below except that those parts of the program effecting compliance with
the requirements listed in Sec. 108.103(b) (1), (2), (3), (4), (6), and
(8) of this part need only be implemented when the Administrator
notifies the air carrier in writing that a security threat exists
concerning that operation:
(i) A private charter operation with an aircraft having a
passenger-seating configuration of more than 30 seats.
(ii) A scheduled passenger or public charter operation with an
aircraft having a passenger-seating configuration between 31 and 60
seats inclusive.
(iii) A scheduled passenger, public charter, or private charter
operation with an aircraft having a passenger-seating configuration of
less than 61 seats engaged in operations to, from, or outside the U.S.
(b) Each air carrier that has obtained FAA approval of a security
program for operations not listed in paragraph (a) of this section
shall carry out the provisions of that program.
Sec. 108.103 Form, content, and availability.
(a) The security program required under Sec. 108.101 shall:
(1) Provide for the safety of persons and property traveling on
flights provided by the air carrier against acts of criminal violence
and air piracy, and the introduction of explosives, incendiaries,
deadly or dangerous weapons, or other destructive substances aboard an
aircraft.
(2) Provide that, upon receipt of an approved security program or
security program amendment from the FAA, the air carrier shall
acknowledge receipt of the approved security program to the Principal
Security Inspector, in writing and signed by the air carrier or any
person delegated authority in this matter within 72 hours.
(3) Include the items listed in paragraph (6) of this section, as
required by Sec. 108.101.
(4) Be approved by the Administrator.
(b) The security program shall include:
(1) The procedures, and description of the facilities and equipment
used to perform screening functions specified in Sec. 108.201 of this
section, and used to perform the functions for each exclusive area
under Sec. 107.207 of this chapter.
(2) The procedures and a description of the equipment used to
comply with the requirements of Sec. 108.203 of this part regarding the
use of metal detection devices.
(3) The procedures and a description of the equipment used to
comply with the requirements of Sec. 108.205 of this part regarding the
use of X-ray systems.
(4) The procedures and descriptions of the facilities and equipment
used to comply with the requirements of Sec. 108.207 of this part
regarding explosives detection systems.
(5) The procedures used to comply with the applicable requirements
of Sec. 108.211 of this part regarding law enforcement personnel.
(6) The procedures and a description of the facilities and
equipment used to perform the aircraft and facilities control functions
specified in Sec. 108.219 of this part.
(7) The procedures used to comply with the requirements of
Sec. 108.221 of this part regarding employee background investigations
and personnel identification systems.
(8) The procedures used to comply with the applicable requirements
of Sec. 108.301 of this part regarding the responsibilities of security
coordinators and the prevention and management of hijacking and
sabotage attempts.
(9) the procedures used to comply with the requirements of
Sec. 108.303 of this part regarding bomb and air piracy threats.
(10) The curriculum used to accomplish the training required under
Sec. 108.225 of this part.
(11) The procedures and curriculum of the training requirements
under Sec. 108.227 of this part; and a security compliance program that
specifies procedures the air carrier will implement to ensure that
persons with authorized unescorted access to critical security areas
and restricted operations areas comply with Sec. 108.7 and Sec. 108.9
of this part, including revocation of unescorted access authority of
persons that fail to comply with security requirements.
(12) Designation of an Air Carrier Security Coordinator (ACSC). The
designation shall include the name of the ACSC and a description of the
means by which the ACSC can be contacted on a 24-hour basis.
(13) A security contingency plan as specified under Sec. 108.307 of
this part.
(c) Each air carrier having an approved security program shall:
(1) Maintain at least one complete copy of the security program at
its principal business office.
(2) Have available a complete copy, or the pertinent portions, of
its approved security program, or appropriate implementing
instructions, at each airport served.
(3) Make a copy of the approved security program available for
inspection upon request of an FAA Special Agent.
(4) Restrict the distribution, disclosure and availability of
information contained in the security program to persons with a need-
to-know as described in part 191 of this chapter.
(5) Refer requests for such information by other persons to the
Administrator.
(6) Implement a program to ensure that its employees and employees
of its contractors comply with paragraphs (a) and (b) of Sec. 108.103.
The program's provisions shall include penalties to be imposed on
individuals who fail to comply with paragraphs (a) and (b) of th
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