Certification of Screening Companies

SUMMARY: The FAA seeks public comment on issues relating to the

certification of screening companies (other than air carriers) by the

FAA, and other enhancements to the screening by air carriers of

passengers and property that will be carried in the cabin of an

aircraft, and of checked baggage. This advance notice responds to a

recommendation made by the White House Commission on Aviation Safety

and Security, and to a requirement in the Federal Aviation

Reauthorization Act of 1996. It is intended to improve the screening of

passengers, property, and baggage. After reviewing any comments made in

response to this advance notice, the FAA will issue a notice of

proposed rulemaking with specific regulatory proposals.

DATES: Comments must be received on or before May 1, 1997.

ADDRESSES: Comments on this notice may be delivered or mailed, in

triplicate, to: Federal Aviation Administration, Office of the Chief

Counsel, Attn: Rules Docket (AGC-200), Docket No. 28852, Room 915G, 800

Independence Avenue, SW., Washington, DC 20591. Comments submitted must

be marked: ``Docket No. 28852.'' Comments may also be sent

electronically to the following internet address: 9-nprm-

cmtsfaa.dot.gov. Comments may be examined in Room 915G on weekdays,

except Federal holidays, between 8:30 am. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT:

Penny J. Anderson, Office of Civil Aviation Security Policy and

Planning, ACP-100, Federal Aviation Administration, 800 Independence

Avenue, SW., Washington, DC 20591, telephone (202) 267-5183.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to submit comments by providing such

written data, views, or arguments as they may desire. Comments relating

to the environmental, energy, federalism, or economic impact are also

invited. Substantive comments should be accompanied by cost estimates.

Comments must identify the regulatory docket or notice number and be

submitted in triplicate to the Rules Docket address specified above.

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

summarizing each substantive public contact with FAA personnel on this

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

public inspection before and after the comment closing date.

The Associate Administrator for Civil Aviation Security has

determined that air carrier security programs required by part 108

contain sensitive security information. As such, the availability of

information pertaining to air carrier security programs is governed by

14 CFR part 191 and 14 CFR 108.7(b) (4) and (5). Air carriers who wish

to comment on this notice should be cautious not to include information

contained in the security program in their comments.

All comments received on or before the closing date will be

considered by the Administrator before taking action on this proposed

rulemaking. Late-filed comments will be considered to the extent

practicable.

Commenters wishing the FAA to acknowledge receipt of their comments

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

stamped postcard with those comments on which the following statement

is made: ``Comments to Docket No. 28852.'' The postcard will be date

stamped and mailed to the commenter.

Availability of ANPRMs

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), the Federal Register's electronic bulletin board service

(telephone: 202-512-1661), or the FAA's Aviation Rulemaking Advisory

Committee Bulletin Board service (telephone: 202-267-5948).

Internet users may reach the FAA's web page at http://www.faa.gov

or the Federal Register's webpage at http://www.access.gpo.gov/su__docs

for access to recently published rulemaking documents.

Any person may obtain a copy of this ANPRM by submitting a request

to the Federal Aviation Administration, Office of Rulemaking, ARM-1,

800 Independence Avenue, SW., Washington, DC 20591, or by calling (202)

267-9680. Communications must identify the notice number or docket

number of this ANPRM.

Persons interesting in being placed on the mailing list for future

ANPRMs or NPRMs should request from the above office a copy of Advisory

Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System,

that describes the application procedure.

Background

Following the tragic crash of TWA 800 on July 17, 1996, the

President created the White House Commission on Aviation Safety and

Security (the Commission). The Commission issued an initial Report on

September 9, 1996, with 20 specific recommendations for improving

security, one of which was the development of uniform performance

standards for the selection, training, certification, and

recertification of screening companies and their employees.

On October 9, 1996, the President signed the Federal Aviation

Reauthorization Act of 1996, Pub.L. 104-264 (the Act). Section 302

provides:

The Administrator of the Federal Aviation Administration is

directed to certify companies providing security screening and to

improve the training and testing of security screeners through

development of uniform performance standards for providing security

screening services.

The rulemaking initiated by this advance notice is intended to

provide an initial response to these mandates. It requests comments on

improving the screening system and on the certification of screening

companies.

Rulemaking Process

This ANPRM does not propose specific regulatory changes. Rather, it

requests comments and suggestions as to what regulatory changes should

be made to carry out the Act and the Commission's recommendations.

After review of all of the comments submitted in response to his ANPRM

the FAA will issue a notice of proposed rulemaking (NPRM), proposing

specific regulations. Interested persons will have the opportunity to

comment on those proposed changes before a final rule is adopted.

History and Current Requirements

Title 49, United Stated Code, section 44901, requires the FAA to

prescribe regulations requiring air carriers to screen all passengers

and property that will be carried in a cabin of an aircraft in air

transportation or intrastate air transportation. This screening must be

done before the aircraft is boarded, using weapon-detecting facilities

or

[[Page 12725]]

procedures used or operated by an employee or agent of an air carrier,

intrastate air carrier, or foreign air carrier.

Part 108 of Title 14, Code of Federal Regulations, contains rules

in Secs. 108.9, 108.17, and 108.20 for the conduct of screening

operations. These rules, which are available to the general public,

provide basic standards for the screeners, equipment, and procedures to

be used. In addition, each air carrier that is required to conduct

screening has a non-public security program (issued under Secs. 108.5

and 108.7) that contains detailed requirements for screening.

Essentially all approved air carrier security programs are actually the

Air Carrier Standard Security Program (ACSSP). The ACSSP provides

identical measures for all air carriers to use in most situations.

Individual air carriers may request alternate procedures in specific

situations to allow more efficient operations, where the required level

of security can be maintained.

There are several means by which an air carrier may conduct

screening. It may use its own employees. It may contract with another

company to conduct the screening in accordance with the air carrier's

security program. It may contract with another air carrier to conduct

screening. In each case, the air carrier is required to provide

oversight to ensure that all requirements are met. For example,

Sec. 108.29 requires that the air carrier's ground security coordinator

(GSC) review security-related functions and initiate corrective action

for noncompliance, and Sec. 108.31(d) requires that the GSC conduct an

annual evaluation of each person assigned screening duties.

In addition to screening persons and property to be carried in the

cabin of an aircraft, Sec. 108.9(a) requires air carriers to prevent or

deter the carriage of any explosive or incendiary in checked baggage.

The ACSSP contains various measures to carry out this duty, including

screening of checked baggage.

The term ``screening location'' refers to any site at which the

screening of passengers, property, or baggage is conducted. A

``screening checkpoint'' is a type of screening location. Specifically,

a ``screening checkpoint'' refers to a screening location at which the

screening of passengers and property that will be carried in the cabin

of an aircraft is conducted. Another example of a specific type of

screening location would be a site at which the screening of checked

baggage is conducted.

Some screening locations are used by only one air carrier. However,

most locations are used by more than one air carrier (often referred to

as ``joint-use checkpoints''), resulting in more than one air carrier

having the regulatory responsibility to oversee the operation of the

location. The use of the ACSSP ensures that all air carriers using the

location are held to the same standards.

Foreign air carriers that operate in the United States are required

to have a security program and carry out security procedures under 14

CFR 129.25, 129.26, and 129.27. It is anticipated that foreign air

carriers will be subject to the same provisions for the use of

certificated screening companies as U.S. air carriers, and comment is

specifically invited on this.

General Discussion and Request for Comments

There are a number of issues that arise in connection with

certification of screening companies. The FAA requests comments and

suggestions on all issues related to the certification of screening

companies and the improvement of screening. The FAA will consider all

comments and suggestions. The following are issues of particular

interest:

1. Oversight by Air Carriers

There has been no change to the requirement in 49 U.S.C. 44901(a)

that screening of passengers and property that will be carried in the

cabin of an aircraft in air transportation or intrastate air

transportation be conducted by an employee or agent of an air carrier.

Further, the FAA does not anticipate any change in the air carrier's

responsibility for screening of checked baggage. Accordingly,

certificated screening companies must be agents of air carriers, and

air carriers will remain ultimately responsible for the proper

screening of passengers, property, and baggage. However, as certificate

holders, the screening companies will be responsible for carrying out

their regulatory duties to properly screen passengers, property, and

baggage. In the case of a failure to properly screen, both regulated

parties, i.e., the air carriers and the certificated screening company,

potentially bear responsibility.

This gives rise to questions about how air carriers should select a

screening company, and then oversee the operations of that screening

company, and the extent to which screening companies should be held

directly responsible for the operation of screening locations. The fact

that screening companies will have certificates will not relieve air

carriers of responsibility for screening. These questions are similar

to others that have been dealt with regarding air carrier oversight of

contractors and employees. For example, the FAA recently has emphasized

to air carriers the need for stronger oversight of certificated repair

stations performing maintenance on their aircraft. As another example,

the FAA currently requires pilots to have certificates, yet under Title

V of the Act, the air carrier must obtain extensive information on

pilots before they are hired.

The FAA anticipates that details of selecting a screening company,

and then overseeing the operations of that screening company, will be

placed in the security programs. However, the FAA requests comments as

to the general rules that should appear in part 108 regarding what

guidelines an air carrier should follow with respect to selection and

oversight of a screening company. For example, what information should

an air carrier collect prior to contracting with a screening company.

Of what should air carrier oversight of a screening company consist?

Should it include periodic inspections? Training audits? Records audit?

Screening surveillance? Unannounced, anonymous testing? Other

surveillance?

In addition to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of carrying out

oversight responsibilities.

2. Joint-Use Screening Locations

The FAA is evaluating how best to address common, or joint-use

screening locations. Currently, joint-use screening locations are

handled in a number of ways. Some locations have a managing air carrier

that has accepted responsibility for administrative functions relating

to the location, and for responsibility in the event of certain

security violations. At other checkpoints the responsibility for these

events may be spread among many air carriers.

The FAA requests comments on the best method of structuring air

carrier selection of a screening company for joint use screening

locations, and oversight of that screening company's activities. Should

there be an agreement between all affected air carriers? What form

should this agreement take? How should it be documented? How much

involvement should air carriers other than the managing air carrier

have regarding the day to day and long-term activities of the location?

3. Screening Security Program

As discussed above, there currently exist requirements for the

screening of passengers, property, and baggage to be carried aboard air

carrier aircraft, in part

[[Page 12726]]

108 and in the ACSSP. The ACSSP provides a uniform standard for

screening, which assists in having a coordinated effort when more than

one air carrier is using the same screening location. Further, the

ACSSP is made available only to those persons with an operational need

to know, not to the general public, in order to avoid unauthorized

persons from obtaining information that could be used to attempt to

defeat the security system. It is evident that large portions of the

requirements for screening by screening companies must be in a non-

public security program, just as they are for air carriers.

The FAA is considering establishing by regulation a uniform

security program for use by all air carriers and screening companies.

This screening security program would incorporate the screening

standards currently provided in the ACSSP. This screening security

program could be incorporated as part of the ACSSP (as it is now) or be

developed as a separate security program for screening companies. In

this case, all air carriers and certificated screening companies would

be subject to the same standards for conducting screening. Screening

companies would be made directly responsible for protecting the

security program from access by unauthorized persons, similar to the

requirement on air carriers under Sec. 108.7(b) (4) and (5). There

would be no confusion as to which air carrier's security program a

screening company would carry out at a given location.

The FAA requests comments on this approach, and requests

suggestions as to any other means that might be used to ensure that

uniform standards are used to perform screening, and to ensure that the

standards are protected from unauthorized use.

It has long been recognized that screener performance standards

must be measurable. Although the FAA intends to begin measuring

screener performance using the Threat Image Projection System (TIPS),

it remains open to suggestions for other methods of evaluating

performance.

In addition to substantive comments or suggestions relating to this

issue, the FAA also requests estimates of the costs of implementing and

carrying out a uniform security program.

4. Screener Training

The FAA has been working on ways to improve screener training, such

as computer-based instruction. We anticipate that the details of most

such changes will, of necessity, be placed in the ACSSP. The FAA is

also considering a requirement to incorporate into each security

program the specific curriculum to be used to train screeners. This

would require the approval of the training curriculum by the FAA.

In addition to substantive comments or suggestions relating to this

issue, the FAA requests any cost information that would assist it in

evaluating the cost impact of the commenter's suggested changes to

training methods or curriculum.

5. Qualifications and Operations of Screening Companies

The FAA is considering what qualifications companies should be

required to demonstrate before the FAA issues a screening company

certificate. The FAA requests comments on what should be the minimal

showings to qualify for a screening company certificate.

Local and National Qualifications

A screening company may carry out its functions at many different

locations throughout the country. Each location may have different

types of equipment in place to conduct screening and to train

screeners. The FAA requests comments on whether screening companies

should be qualified on a national basis, or should companies be

required to make specific showings of qualification for each location?

Aviation Screening Experience

The screening of passengers, property, and baggage at airports is a

unique task. While there are some similarities to security functions

performed in other settings (such as security at sports arenas and

other public events), there are many differences. The FAA is

considering whether a screening company should be required to have

management personnel with specialized aviation experience or training,

similar to that required for various air carrier management personnel

under Secs. 119.65 and 119.67.

Screening Equipment

Under current requirements, the equipment used for screening (such

as x-ray machines and metal detectors) must be approved by or

acceptable to the FAA. Further, the equipment must be checked or

calibrated on a specified interval, and taken out of service if it

fails to perform as required. Currently, most equipment is owned by air

carriers, and that seems likely to remain true in the future. The FAA

requests comments on the responsibility the air carriers and the

screening companies each should have for both the equipment initially

obtained to use at each location and the periodic checking and testing

of the equipment, as well as its continued use after failure.

Training Equipment

Currently training equipment generally is owned by air carriers,

and there may be different training programs in use by different air

carriers. However, certificated screening companies will be responsible

for ensuring that their screeners are properly trained. This raises the

question whether each screening company should use whatever program is

in place at each airport, or should be responsible for conducting its

own training using its own equipment. The use of different training

programs at different airports by the same screening company may be

hard to manage, and make it difficult to determine to what standard the

screening company must comply. The FAA requests comments on how

training of screeners should be accomplished. For example, should

training programs be approved for each site rather than for the

screening company as a whole? Also, how should training for use of new

equipment be addressed?

In addition to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of meeting any of the

qualifications or operational requirements described above.

6. Screeners

There is a concern that screeners should be encouraged to have a

stronger sense of professionalism. There are a number of potential ways

to accomplish this.

It has been suggested that it should be easier for screeners to

switch employment from one screening company to another (screener

mobility). Currently, when a screener wishes to switch companies, or

one company stops operating a screening location for an air carrier and

is replaced by another screening company, the first company does not

necessarily transfer the training records to the new company. The

screeners then must completely requalify for the new company. The FAA

is considering whether there should be a means for certain records to

be transferred, at the screener's request, to ease the transition.

Mobility of documentation also raises issues in regard to the

accuracy of the documents, screener rights relating to corrections to

the documents, and screening company liability in the event an

inaccurate document is transferred.

Another means of encouraging professionalism is to provide a

special recognition of the screener's successful completion of

training.

[[Page 12727]]

The FAA requests comments on ways that the regulations could

encourage a stronger sense of professionalism in screeners.

In addition to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of increasing the

professionalism of the screener position through implementation of the

measures described above and any recommendation made by the commenter.

7. Screening by Air Carriers

Some air carriers conduct screening with their own employees. They

may do so at joint-use locations, and therefore conduct screening on

behalf of other air carriers. The FAA is considering whether air

carriers that conduct screening should be subject to the same standards

as certificated screening companies. These standards would include

those issues raised in this document that identify possible screening

company requirements, such as the qualification of management and

screener training. They might also include oversight by other air

carriers for which they screen.

In addition to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of imposing the same

requirements on air carriers as those that will be imposed upon

independent screening companies.

8. New Screening Companies

There are about 70 screening companies (other than air carriers)

currently performing passenger, property, and baggage screening at U.S.

airports. We assume other companies will be formed in the future. These

new companies may have no background or experience in aviation security

screening. These screening companies will be required to have a

certificate prior to beginning screening. The FAA invites coments on

how to ensure the qualifications of a company that has no aviation

screening experience before it begins aviation screening.

The FAA is considering whether there should be a period of

provisional certification for new screening companies that have not

demonstrated an ability to screen in the aviation environment. This may

include additional measures and/or constraints upon such new companies

to ensure competence of the screening company. During this provisional

period the FAA and the air carrier could provide more monitoring of

training, and more testing and surveillance than would normally be

provided for established companies. The screening company might also be

constrained from beginning screening activities at a new screening

location unless advance approval is given by the FAA. The provisional

certificate could be limited to a specific period, after which a

successful screening company may apply for a standard screening company

certificate and be expected to meet only those provisions required of

experienced screening companies.

The FAA requests comments as to what measures or constraints, if

any, should be placed upon a new screening company. If a provisional

certificate were to be issued, for what period of time should it remian

in effect? What additional oversight requirements, if any, should be

placed upon an air carrier contracting with a new screening company?

In additon to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of provisional

certification or other possible constraints upon new screening

companies.

9. Checkpoint Operational Configuration Deficiencies

The FAA has observed that difficulties with the performance of

screening at checkpoints often are caused by a less than optimal

physical configuration of the checkpoint. For instance, a screener may

have problems reading the x-ray screen because there is a glare on the

screen. The FAA is considering clarifying the responsibility of the air

carriers and the screening companies to make sure that their

checkpoints are configured for effective screening. In some cases an

airport operator would have an interest in the correction of

operational checkpoint configuration deficiencies. The FAA requests

comments on how best to address operational checkpoint deficiencies.

In addition to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of correcting

operational checkpoint deficiencies.

10. Foreign Air Carriers

The FAA anticipates that this rule will also apply to foreign air

carriers required to screen under a security program required by 14 CFR

part 129. The FAA requests comments on the impact on foreign air

carriers operating in the United States.

In addition to substantive comments or suggestions relating to this

issue, the FAA requests estimates of the costs of imposing the same

requirements on foreign air carriers.

Issued in Washington, DC, on March 11, 1997.

Quinten T. Johnson,

Acting Director, Office of Civil Aviation Security Policy and Planning.

[FR Doc. 97-6531 Filed 3-12-97; 8:45 am]

BILLING CODE 4910-13-M