Employment History, Verification and Criminal History Records Check

SUMMARY: The FAA amends the regulations that require an access

investigation, including a fingerprint-based criminal record check in

certain cases, for unescorted access privileges to security areas at

airports. This final rule extends the requirement for an access

investigation (which is renamed ``employment history investigation'')

to persons who perform checkpoint screening functions at airports and

their supervisors. The final rule also requires airport operators and

air carriers to audit employment history investigations. This final

rule is in response to the Federal Aviation Reauthorization Act of 1996

and seeks to improve the security of the airport environment.

EFFECTIVE DATE: November 23, 1998.

FOR FURTHER INFORMATION CONTACT:

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

Civil Aviation Security Division, ACP-100, Federal Aviation

Administration, 800 Independence Avenue, SW., Washington, DC 20591,

telephone (202) 267-3413.

SUPPLEMENTARY INFORMATION:

Availability of Final Rule

This document may be downloaded from the FAA regulations section of

the FedWorld electronic bulletin board (telephone: 703-321-3339), the

Federal Register's electronic bulletin board (telephone: 202-512-1661),

or the FAA's Aviation Rulemaking Advisory Committee Bulletin Board

(telephone: 800-322-2722 or 202-267-5948).

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

or the Federal Register's web page at http://www/access.gpo.gov/

su__docs to download recently published rulemaking documents.

Any person may obtain a copy of this final rule 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) 267-9677. Communications must reference the amendment

number of this final rule.

Persons interested in being placed on the mailing list for future

rules should request a copy of Advisory Circular (AC) No. 11-2A, Notice

of Proposed Rulemaking Distribution System, which describes the

application procedure.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act of 1996

(SBREFA) requires the FAA to report inquiries from small entities

concerning information on, and advice about, compliance with statutes

and regulations within the FAA's jurisdiction, including interpretation

and application of the law to specific sets of facts supplied by a

small entity.

The FAA's definitions of small entities may be accessed through the

FAA's web page http://www.faa.gov/avr/arm/sbrefa.htm, by contacting a

local FAA official, or by contacting the FAA's Small Entity Contact

listed below.

If you are a small entity and have a question, contact your local

FAA official. If you do not know how to contact your local FAA

official, you may contact Charlene Brown, Program Analyst Staff, Office

of Rulemaking, ARM-27, Federal Aviation Administration, 800

Independence Avenue SW., Washington, DC 20591, 1-888-551-1594. Internet

users can find additional information on SBREFA in the ``Quick Jump''

section of the FAA's web page at http://www.faa.gov and may send

electronic inquiries to the following Internet address: 9-AWA-

[email protected]

Background

History

Title 14 of the Code of Federal Regulations (CFR) part 107

prescribes security requirements of airport operators concerning access

control, law enforcement support, and the submission of airport

security programs for FAA approval. Title 14 CFR part 108 prescribes

security rules for U.S. carriers who must adopt and carry out an FAA

approved security program. As used in this document, the term ``air

carrier'' refers to U.S. air carriers conducting passenger-carrying

operations.

On October 3, 1995, the FAA issued a final rule on Unescorted

Access Privilege (60 FR 51854). The FAA issued the rule primarily in

response to the Aviation Security Improvement Act of 1990. The rule

requires a 10-year employment history investigation for certain

employees, including, if needed, a Federal Bureau of Investigation

(FBI) fingerprint-based criminal records check. These employment checks

must be performed for individuals who are granted unescorted access to

a security identification display area (SIDA) and individuals who

authorize others to have unescorted access. (See 14 CFR 107.25.) In the

preamble to the Unescorted Access Privilege final rule the FAA stated

that it would continue to evaluate the civil aviation security system

to determine if further changes were warranted.

The bombings of the Federal Building in Oklahoma City and the World

Trade Center Building in New York, along with information provided by

the U.S. intelligence community after those incidents, has indicated

the terrorist activities are no longer limited to areas outside of the

United States. Intelligence information indicates that terrorists are

in the United States, working alone, working in ad-hoc groups, or

serving as members of established terrorist groups. In light of the

increase in terrorism in this country, the White House Commission on

Aviation Safety and Security (the Commission) identified a further need

to enhance security at our nation's airports. In its final report,

(``Final Report to President Clinton--White House Commission on

Aviation Safety and Security,'' February 12, 1997), the Commission

recommended that ``Given the risks associated with the potential

introduction of explosives into these [airport] areas, * * * screeners

and employees with access to secure areas [should] be subject to

criminal background checks and FBI fingerprint checks.''

In section 304 of the Federal Aviation Reauthorization Act of 1996,

Pub. L. 104-264 (the Act), the Congress directed the FAA to expand the

use of both employment history investigations and fingerprint-based

criminal records checks. Section 304 of the Act directs the

Administrator to issue regulations requiring employment history

investigations and, as needed, criminal record checks for individuals

who screen passengers and property that will be carried in an aircraft

cabin in air transportation or intrastate air transportation. The

regulations would also apply to supervisors of screeners. The Act also

provides that Administrator with the discretionary authority to apply

these investigations to individuals who exercise security functions

associated with cargo and baggage. In addition, section 306 of the Act

directs the Administrator to provide for the periodic audit of the

effectiveness of the criminal record checks. The FAA believes that the

[[Page 51205]]

measures mandated by Congress will help ensure the integrity of the

airport environment.

In related security measures the FAA, on August 1, 1997, issued two

NPRMs: Airport Security (62 FR 41760) and Aircraft Operator Security

(62 FR 41730). These notices proposed to amend the existing Airport

Security and Aircraft Operator Security rules in 14 CFR parts 107 and

108. In addition these amendments would revise certain applicability

provisions, definitions and terms; reorganize these rules into subparts

containing related requirements; and incorporate some requirements

already implemented in airport and air carrier approved security

programs. The comment period on both proposals was extended to June 26,

1998 (63 FR 19691, April 21, 1998). Neither of these proposals

addresses employment history, verification, and criminal records

checks. If these NPRMs become final rules then Sec. 107.31 would be

renumbered as Sec. 107.207 and Sec. 108.33 would be renumbered as

Sec. 108.221.

General Discussion of the Rule

On March 19, 1997, the FAA issued an NPRM proposing to revise the

requirements for an Employment History, Verification and Criminal

Records Check in Secs. 107.31 and 108.33 (62 FR 13262). In the notice

the FAA proposed to extend the requirement for employment history

investigations to persons who perform checkpoint screening functions at

airports and their supervisors. The addition of screeners only affects

part 108. The FAA also proposed to require airport operators and air

carriers to audit the employment history investigations that they

perform under Secs. 107.31 and 108.33, respectively.

A new term appears in this final rule. The NPRM used the term

``tenant.'' The FAA determined that the term ``tenant'' was not

accurate for the purposes of proposed Sec. 107.31. The FAA has defined

the new term ``airport user'' for the purposes of Sec. 107.31 only.

``Airport user'' means those employers, not subject to Sec. 108.33,

whose employees seek unescorted access privileges to the SIDA. An

airport user may include those companies that do not have business

offices at the airport, but require access to the airport's SIDA.

Screeners are the responsibility of air carriers.

The FAA received 27 comments on the NPRM. A summary of those

comments and an explanation of changes made in the final rule in

response to those comments appear below under ``Discussion of

Comments.'' Significant changes between the NPRM and the final rule

include the following:

1. Section 107.31(p), Airport user responsibility, was added to the

final rule to accommodate other changes related to comments received.

Several comments to the NPRM stress the difficulty the airport

operators would have in maintaining the investigative files for all

individuals with unescorted access. In the final rule, Sec. 107.31(p)

allows airport users to maintain the employment history files after the

airport operator has performed a preliminary review.

2. Section 108.33(m), Air carrier responsibility, was added to

clarify for air carriers the designations of responsibility necessary

for compliance with this rule. This section recognizes the extent of

the air carriers' responsibilities with respect to their employees and

security screeners.

3. The FAA has reorganized the employment history investigation by

dividing the investigative process into Part 1 and Part 2. This

clarification, which does not substantively change the requirements,

was added to both Secs. 107.31 and 108.33. Part 1 of the employment

history investigation entails a review of the employment record of the

individual for the past 10 years, and verification of the most recent 5

years of employment. This portion of the employment history

investigation may be performed by an airport user, or in the case of

air carriers by a screening company. Part 2 of the investigation is a

fingerprint based criminal record check. If Part 1 reveals certain

questionable items (triggers), such as an unexplained 12 month gap in

employment, Part 2 must be performed. It is important to understand

that Part 2 of the investigation only occurs if there is a triggering

event discovered during Part 1 of the investigation and the employer

and the individual agree to go forward with the fingerprint check. If

the airport user chooses not to continue, or if the individual when

requested chooses not to submit fingerprints, then the employment

history investigation will stop and the individual will not be eligible

for unescorted SIDA access or to perform or supervise screening

functions.

Discussion of Comments

A total of 27 comments were received in response to the NPRM.

Commenters include airport operators, air carriers and their respective

associations, pilot associations, cargo companies, screening companies,

and food service companies. While most commenters support the intent of

the proposed rule to improve airport security, many commenters disagree

with specific aspects of the proposal. Comments are discussed in detail

below.

1. Scope (Secs. 107.31(a) and 108.33(a))

The FAA proposed a clarifying amendment (Sec. 108.33(a)(2)) to

ensure that an employment history investigation be completed for each

individual issued an air carrier identification badge that is

recognized as ``airport accepted'' media. By recognizing the air

carrier badge the airport operator authorizes unescorted access

privileges for that individual. Additionally, the FAA proposed

(Sec. 108.33(a)(3)) expanding the applicability of the employment

history investigation requirement to include (a) individuals performing

screening functions associated with persons and property entering the

aircraft cabin, and (b) individuals holding the two immediate

supervisory positions above the screeners. This section continues to

apply to those individuals who currently have unescorted access

privilege.

Some comments address the issue of airline issued media. Two

commenters state that if an individual has airline issued access media,

that media should allow access to SIDAs regardless of whether it was

issued at the individual's home airport. One commenter states that

flight crewmembers should be able to use their company identification

for access to the SIDA. Another commenter states that all air crews

should be required to carry airline issued media and that the

background checks and audit provisions should apply to such media.

One commenter suggests that the 10-year background check apply to

issuing officers of airport tenants and contractors, including

screening companies.

One commenter suggests that airport tenant service providers should

be allowed to voluntarily obtain a certified standard security plan

from the FAA in the same manner currently available to freight

forwarders and cooperative shipper's associations. Such an approach

would allow the security programs of tenants to be certified by the FAA

in the same manner as an air carrier's, thereby streamlining the

administrative process for airport contractors and their tenants.

FAA Response: It is the FAA's intent that the current practice of

recognizing air carrier media by various airport operators as ``airport

approved'' media be continued. The purpose of Sec. 108.33(a)(2) is to

maintain the current

[[Page 51206]]

practice and to ensure those air carrier employees who are extended

such privileges have also undergone the same employment history

investigation as others who have SIDA access.

The FAA does not require the creation of an ``issuing officer'' nor

is there a clear understanding of what exactly the job duties are for a

person holding such a position. Since the airport operator is the only

approval authority for granting unescorted access the regulation covers

those that might be granting such access on behalf of the airport.

Several airport operators are requesting that airport users limit the

number of persons who may sign a certification on behalf of that

company. This makes sense from operational standpoint; however; it is

FAA's view that this representation is only indicating the

investigation has been conducted. The representative is not granting

unescorted access on behalf of the airport operator. If in fact the

airport user's representative is granting of authorizing unescorted

access, the rule requires an employment history investigation for this

person under Sec. 107.31(a).

The NPRM was published to address employment history investigations

and not for addressing the creation of tenant security programs;

therefore the final rule does not address such programs. This issue was

addressed in the Airport Security (62 FR 41760) and Aircraft Operator

Security (62 FR 41730) NPRMs and will be further addressed in

subsequent documents resulting from the NPRMs for Airport and Aircraft

Operator Security.

The FAA will continue to evaluate all elements of the civil

aviation security system to determine if further changes are warranted.

2. Grandfathering of Current Employees (Secs. 108.33(a) (3) and (4))

The FAA proposed that all screeners hired after the effective date

of the new regulations would be required to have an employment history

investigation (Sec. 108.33(a)(3)). Retroactive background checks were

proposed in Sec. 108.33(a)(4) for individuals who were hired before the

effective date of the rule and who remain employed for a year after the

effective date.

A number of commenters, including National Air Transportation

Association (NATA), Regional Airline Association (RAA), Air Transport

Association of America (ATA), and Air Line Pilots Association (ALPA),

say that requiring employment background checks on current screening

personnel and supervisors is not justified because these employees have

already undergone a 5-year verification check and on-the-job

observation. According to these commenters, the proposed requirement

would add unnecessary costs and paperwork without increasing aviation

security. The commenters believe these individuals should be

grandfathered into the final rule at its effective date.

Two commenters, Airports Council International and American

Association of Airport Executives (ACI-NA and AAAE), state that

airports which have proactively applied Sec. 107.31 to security

screeners should not have to reissue/revalidate access media nor do a

second background investigation for these screeners.

ALPA states that the current rule applies only to those individuals

seeking authorization for unescorted access privileges, and not to

those who were employed before January 31, 1996.

One commenter requests clarification that Sec. 108.33(a)(2) is not

a retroactive requirement.

One commenter states that it should be made clear that

Sec. 108.33(a)(2), extending background investigation to each

individual who is issued an air carrier identification badge that is

accepted by an airport for unescorted access, applies only to flight

crewmembers and other employees hired after the effective date. A

retroactive application would impose very significant administrative

burdens and costs on carriers.

Another commenter states that employees with access to the SIDA

were grandfathered when the Access Investigation rule went into effect,

therefore, the time frame for compliance with the proposed rule should

be shortened.

FAA Response: The FAA has reconsidered its proposal to require

currently employed screeners to undergo the employment history

investigation. The FAA agrees with the commenters who state that

requiring employment history investigations of current screening

personnel and supervisors who have already undergone a 5-year

verification check and on-the-job observation would add more costs and

paperwork without providing a comparable increase in airport security.

Further, because of the typically high turnover rates, much of the

screener population will have been subjected to the expanded employment

history investigation within a relatively short period. Therefore, the

FAA concludes that air transportation security does not require the

retroactive application of this rule to current screeners and their

supervisors.

In response to the commenter requesting clarification about

Sec. 108.33(a)(2), the FAA confirms that it is not retroactive. This

change was proposed in the NPRM and will become effective upon the

effective date of this final rule.

In response to the commenter questioning whether the grandfathering

provisions of the access investigation still apply, this rule does not

change that grandfather provision. Those individuals having unescorted

access prior to January 31, 1996, were grandfathered and this status

will continue.

3. Employment History Investigation (Secs. 107.31(b)(1) and

108.33(b)(1))

The FAA proposed replacing the term ``access investigation'' with

``employment history investigation,'' The 10-year employment history

review and the 5-year verification requirements would remain unchanged,

although the scope of application would be expanded to include

screeners and supervisors regulated under Sec. 108.33(a)(3).

While one commenter supports the terminology change, another

recommends that the existing terminology, ``access investigation'' be

retained because it is understood that the rule applies to those who

may not have access to the SIDA. Also, this change would increase

paperwork costs, as well as training costs.

This commenter further states that the workforce will experience

stress and fatigue due to the delays from expanded background checks.

This, in turn, will result in more safety problems, as well as the

movement of potential workers away from this industry and towards

comparable paying jobs with no such delays.

One commenter recommends that checkpoint screeners undergo the same

employment background investigations as regular law enforcement

officers including performance of a criminal record check both on

National Crime Information Center (NCIC) and local records.

NATA says that the FAA must clarify which carrier would be

responsible for conducting the required checks in cases where several

carriers share a security checkpoint. The commenter also seeks

clarification in cases where control of the checkpoint changes from one

carrier to another.

FAA Response: In response to comments that the term ``access

investigation'' not be changed due to the costs of changing application

forms and retraining personnel on the terminology, the FAA did not and

is not currently requiring a title be placed on any regulated parties

application. The FAA purposely did not require the

[[Page 51207]]

development of any new forms with the Access Investigation, but

indicated the required information could be added to the employers'

current applications. This final rule adopts the language as proposed.

In response to the commenter who believes that the workforce would

experience stress and fatigue due to delays from the expanded

background checks, the FAA does not agree that these requirements will

result in delays that might cause stress on the industry. The

employment history investigations have not been expanded and the

process remains the same as it was before. The new population being

added to the 10-year investigation will soon find the process routine

and will view it as another step to take prior to performing screener

functions.

In response to the comment requesting that screeners undergo the

same background check as law enforcement officers, the FAA does not

equate screeners with law enforcement officers. Additionally, the FAA

notes that regulated parties are free to determine, within the law, any

standard pre-employment qualifications deemed necessary for their

needs. After an individual has successfully met those requirements,

then the individual would be subject to the FAA regulations that apply

to the position.

In response to NATA's concern about several carriers having

responsibility at one checkpoint, the FAA assures the commenter that

these situations will be handled in the same manner they are currently

being addressed for other regulatory issues. The FAA will rely on the

air carriers, their principal security inspectors, and local FAA agents

to continue to determine the best methods to address compliance with

these regulations.

The FAA has clarified in the final rule the requirements in Secs.

107.31(b)(1) and 108.33(b)(1) by explaining that this portion of the

employment history investigations be referred to as Part 1. Part 1,

which is the 10-year employment history and 5-year verification, must

always be conducted. For reasons discussed in section 6 of the

Discussion of comments, the National Crime Information Center (NCIC) is

not available for implementing this rule.

Part 2 of the 10-year employment investigation is addressed in

Secs. 107.31(c)(5) and 108.33(c)(5). Part 2 consists of the criminal

records check and is required only when a trigger has been met, but

will not be conducted unless both the employer and the affected

individual agree to proceed with the process.

4. Disqualifying Crimes (Secs. 107.31(b)(2) and 108.33(b)(2)

The FAA did not propose any changes to the list of disqualifying

crimes; however, some commenters requested changes to the list of

disqualifying crimes.

Commenters recommend that the list of disqualifying crimes be

expanded to include the manufacture, possession and use of controlled

substances and crimes such as strong arm robbery, theft, auto theft,

and burglary in order to more closely mirror the crimes listed in Part

1 of the Uniform Crime Reporting Act.

One commenter suggests that any felony conviction or arrest should

preclude employment in security checkpoint positions.

FAA Response: The FAA did not propose and is not expanding the list

of disqualifying crimes in this final rule. If regulated parties want

to add anything to their pre-employment standards they may do so. The

FAA is aware that several airport operators and air carriers regularly

conduct local criminal record checks and it is under the authority of

state or local law that such checks are conducted. The FAA encourages

the recognition by all employing parties of the distinction between

their pre-employment standards and qualifications, which are separate

from FAA regulations.

5. Investigative Steps (Secs. 107.31(c) and 108.33(c)

The FAA proposed no substantive changes to these sections, however,

one commenter requests that the FAA clarify the language of proposed

Sec. 107.31(c)(4), which requires the airport operator to verify the

information on the most recent 5 years of employment history. The

commenter believes that the airport operator is required to have final

responsibility for this function but is not required to verify every

single background investigation done by employers.

Another commenter states that the current employment verification

process is not effective because of the high turnover rate in the

industry. It is difficult and time consuming to verify if an

applicant's supervisor has left the company.

For these reasons and because the rule in intended to prevent

individuals convicted of disqualifying crimes from obtaining access to

the SIDA or from performing security functions, NATA recommends that

verifications be used to ascertain that an individual was not

incarcerated in each one-year period. This will allow affected

companies to meet the intent of the regulations by determining if a

disqualifying crime has been committed.

NATA adds that former employers will limit the employee information

they provide out of fear of lawsuits from employees originating from

the transfer of records, and that would be counterproductive to

enhanced security.

Several commenters, including ACI-NA and AAAE, request that the FAA

clarify the employment verification process and state what it considers

to be acceptable verification. These commenters recommend that the

employment verification process be standardized to ensure consistency

among FAA regional security offices.

FAA Response: The proposed rule language has been modified in the

final rule to refer to the first stage of the employment history

investigation, paragraph (C)(1)-(4) as Part 1. Paragraph (c)(1) lists

the information that the individual must provide on the application.

The final rule does require the airport operator to verify the

information on the most recent 5 years of employment history. The

airport operator is responsible for ensuring that the verification has

been completed. The verification is a portion of the investigative

process. The verification may be completed by the airport user, which

the airport operator may accept through the certification.

There are many avenues that may be used in the verification

process. The fact that the applicant's former supervisor is not

available does not mean that the owner or other supervisors of the

company could not vouch for the applicant. Persons other than the

immediate supervisor presumably have access to company employment

records.

It is unclear to the FAA why former employers are hesitant to

provide past employment dates. It is not known to be a basis for a

lawsuit to confirm employment dates. The FAA suspects that liability

issues arise when there are more than just past employment dates that

are being requested. To be in compliance with this regulation only the

confirmation of employment dates is required. The employment history

information required by this final rule from former employers is the

same as required by the current rule.

This final rule was not intended to address the specifics of the

verification process. Future FAA guidance may be provided in another

forum in order to respond to the questions pertaining to the

verification process and acceptable documentation.

[[Page 51208]]

6. Triggers/FBI Fingerprint Check (Secs. 107.31(c)(5) and 108.33(c)(5))

The FAA proposed only an editorial change to the list of

``triggers.'' No additions to the current criteria were proposed.

NATA states that if the airport tenant who is hiring an individual,

covered by the background check rule, does not receive any of the FBI

information, how can that airport tenant employer be ``protected * * *

from future liability?'' For example, if a potential employee has no

disqualifying crimes, but has several convictions for theft, the

business wanting to hire this person as a baggage handler would be

unaware of this record.

One commenter advises the FAA that a criminal records check does

not provide information on individuals who have resided outside the

U.S.

Several commenters state that the 54-day estimate for the FBI

fingerprint check is excessive and costly. One commenter says that the

FAA should ensure that the fingerprint check is completed within 30

days. Another commenter adds that after 30 days it is no longer viable

to keep a new hire on its payroll doing work that does not require

unescorted SIDA access.

FAA Response: As stated, the proposal did not change the

requirements other than extend them to screeners and screener

supervisors.

In response to the commenter requesting access to FBI criminal

records information for airport tenants, the FBI does not allow such

access. The FBI criminal record information may be used only for the

purposes of this rule as stated in Sec. 107.31(i). The FAA does not

have the statutory authority to provide access to FBI criminal records

to anyone other than air carriers and airport operator.

In response to the commenter stating that a criminal records check

does not provide information on individuals who have resided outside

the U.S., the FAA agrees with respect to convictions in foreign

countries. The criminal records check will provide information on

individuals convicted in the U.S. of crimes regardless of where they

currently reside. If an individual has been convicted of a crime

outside the U.S., obtaining that criminal record is beyond the FAA's

current statutory authority.

The FAA has received many telephone calls regarding the current

Secs. 107.31(c)(5) and 108.33(c)(5). Many believe the employer is

directed or authorized to conduct a criminal records check of all

employees/potential employees. The FAA cannot stress enough that the

regulated parties are not to submit fingerprints for a criminal record

unless such action has been triggered by one of the conditions listed

in Secs. 107.31(c)(5) and 108.33(c)(5). However, even with a triggering

event the criminal record check may not occur if either the employer or

the employee/potential employee chooses not to go forward with the

process.

In order to assist those seeking to understand this regulation the

final rule has been amended to reference the fingerprinting process of

the employment history investigation as Part 2. If Part 2 of the

employment history investigation occurs, only part 107 airport

operators or part 108 air carriers are statutorily permitted to request

a comparison of fingerprints against criminal files maintained by the

FBI. Airport users or screening companies who wish to proceed with a

criminal record check for employees or potential employees will make

such a request of the FAA through the appropriate airport operator or

the air carrier.

The FAA has changed the wording in these sections to acknowledge

that not everyone has a criminal record. The final rule effects that

the submission of fingerprints are once collected will be compared with

the FBI's criminal files to see if a match exists and a criminal record

is available.

The FAA agrees with commenters who indicate the turnaround time for

receiving record information is too long. The FAA will continue in its

attempts to ensure a speedy return for all fingerprint cards submitted.

The FAA is confident that once an automated fingerprint processing

system is fully implemented, the turnaround time will greatly improve.

The FBI has indicated to the White House Commission on Aviation Safety

and Security that the turnaround time will be at most seven days.

The FAA will keep the regulated parties abreast of any developments

regarding the automated processing. Clearinghouse services may be

sought by the FAA to assist those regulated parties who will be

transitioning to automated fingerprint processing. The FBI determines

the cost of processing fingerprints and will notify the FAA of any cost

increases. The FAA will in turn notify the regulated parties of those

costs. For further discussion of this issue, see the Regulatory

Evaluation.

Regardless of the fingerprint processing utilized, either through

electronic transmission or not, the requirements of Secs. 107.31(c)(5)

and 108.33(c)(5) remain the same.

Several commenters brought up the use of the NCIC. Title 49 U.S.C.

Sec. 44936 states that ``if the Administrator requires an

identification and criminal record check, to be conducted by the

Attorney General, as part of an investigation under this section, the

Administrator shall designate an individual to obtain fingerprints and

submit those fingerprints to the Attorney General.'' There was not and

there still is not any intention of confirming criminal records by name

alone. As previously noted by the FAA and the FBI, the use of NCIC is

not a definitive means of identification and is not authorized to

satisfy the requirements of this rule.

7. Individual Notification (Secs. 107.31(d) and 108.33(d))

The FAA proposed requiring the regulated party to identify a point

of contact when it notifies an individual that a criminal records check

will need to be conducted.

One commenter recommends that this section specify how the affected

individual should be notified prior to commencing the criminal records

check, i.e., should notification be in writing and be acknowledged by

the affected individual in writing and by signature.

FAA Response: The FAA believes that oral notification should be

adequate, but understands that some regulated parties may choose to

handle such a matter with written notification and acknowledgement by

the affected individual. This business decision is not appropriate for

and will not be addressed in this final rule.

8. Fingerprint Processing (Secs. 107.31(e) and 108.33(e))

The FAA proposed changing paragraph (e)(1) (formerly paragraph

(i)(1)) to clarify that only fingerprint cards approved by the FBI and

issued by the FAA may be submitted. A change to paragraph (e)(5) was

proposed to reflect the increase in the processing cost. The proposed

paragraph did not state an actual dollar amount. The FAA also proposed

that the applicable fee would be provided through the local FAA

security offices.

ACI-NA and AAAE state that the first sentence of Sec. 107.31(e)

should read ``If finger-print based criminal history check is required

pursuant to paragraph (c)(5), the airport operator * * * *'', to ensure

that it is understood that fingerprints do not need to be taken until

indicated by one of the triggers.

The same commenter states that obtaining fingerprints under the

direct observation of the airport operator or law enforcement officer

is inconvenient for those airports without on-site

[[Page 51209]]

facilities. It should be acceptable to utilize local police department

personnel whose activities and expertise are acceptable by local, state

and federal courts.

Two commenters, including ACI-NA and AAAE, express concern that FAA

local offices might add charges to the rate of processing fingerprints.

One of the commenters proposes that a flat rate be retained or that

changes in the future be implemented only after a public hearing or

formal consultation with air carriers.

One commenter states that the FAA and FBI should work together to

expedite development of and direct access to the FBI's Integrated

Automated Fingerprint Identification System (IAFIS) by law enforcement

agencies supporting airports.

FAA Response: The lead-in sentence of Secs. 107.31(e) and 108.33(e)

has been changed in the final rule to clarify that the fingerprint

processing requirements must be complied with ``if a fingerprint

comparison is necessary'' under Secs. 107.31(c)(5) and 108.33(c)(5). A

fingerprint comparison, Part 2 of the employment history investigation,

is required only if one of the triggering conditions occurs in Part 1

of the employment history investigation.

Local police departments are considered law enforcement officers

and by current regulation may assist in the collection of fingerprints.

This option has not been changed in the final rule.

As stated earlier the designated rate for processing each

fingerprint card is determined by the FBI, conveyed to the FAA and will

be passed on to the regulated parties. The FAA does not add any of its

own administrative costs or user fees. When the FBI determines an

increase is necessary it will formally notify the FAA. The FAA national

headquarters will receive information on fees and forward it to the

regulated parties via the local security field offices. The cost is

determined by the FBI and is not negotiable.

The purpose of having the local FAA security offices advise the

regulated parties of the fee is to prevent the need to go through the

prolonged process of rulemaking to make such an announcement. Fees are

periodically changed by the entities providing the services.

Regarding the comment on providing expedited access to law

enforcement agencies supporting airports to the FBI's IAFIS, the FAA is

aware such work is in progress. However, the law enforcement officer's

access to IAFIS exists for law enforcement purposes only and is not

accessible for employment history investigations.

9. Determination of Arrest Status (Secs. 107.31(f) and 108.33(f))

The proposed rule made no changes to the current requirements in

Secs. 107.31(f) (formerly paragraph (j)) and 108.33(f). No comments

were received on these requirements.

10. Corrective Action by Individuals (Secs. 107.31(h) and 108.33(h))

The FAA proposed no substantive changes to Secs. 107.31(h)

(formerly Sec. 107.31(k)) and 108.33(h) (formerly Sec. 108.33(g)). No

comments were received on these requirements.

11. Employment Status While Awaiting Criminal record Checks

(Secs. 107.31(j) and 108.33(j))

The FAA proposed for Sec. 108.33(j) that those individuals applying

for screening functions and screening supervisory positions would not

make independent judgments until their employment history

investigations are completed which includes a criminal record check if

needed. Sections 107.31(j) and 108.33(j) simply restate the current

requirement to escort those who are seeking, but have not yet been

cleared for unescorted SIDA access.

Several commenters express concern that escorting newly hired

workers who are awaiting clearance will put a burden on current

employees, especially if staffing shortages occur.

One commenter says that the meaning of Sec. 108.33(j)(2), ``* * *

applicants * * * must not exercise any independent judgments regarding

those functions'' is unclear and that it should be rewritten.

FAA Response: The FAA believes that some commenters have

misunderstood the requirements for initiating a criminal record check.

Only those persons who meet at least one of the triggers are required

to submit fingerprints for a criminal record check (Part 2) in order to

further pursue their considerations for performing screening functions.

The FAA assumes this will not be the typical case. If the individual

has no need for criminal record check, then the only waiting period is

for the completion of the employment history verification portion (Part

1).

In response to the request for clarifying the language that

screeners ``shall not exercise any independent judgments. * * *'',

the FAA refers the commenter to that portion of the security program

dealing with initial training of screeners for further

clarification.

12. Recordkeeping (Secs. 1.07.31(k) and 108.33(k))

The FAA proposed that only direct employees of airport operators

and air carriers may carry out responsibilities related to requesting,

processing, maintaining and destroying criminal records.

Several commenters, including ACI-NA and AAAE, disagree with the

proposal requiring criminal record responsibilities to be carried out

by direct airport operator employees, excluding contract personnel. One

commenter states that this proposal will prevent airports from

continuing to use law enforcement officers, which clearly does not

compromise security.

The same commenters state that precluding the use of contractors

will impinge upon the airport operator's authority to carry out a

federal mandate in a confidential, efficient and economic manner.

One commenter petitions the FAA to request reconsideration by the

FBI and to strike this limitation.

ACI-NA and AAAE request that the regulation contain an acceptable

method of destruction of criminal and employment background

investigation files.

NATA recommends that the FAA ``seek the same legislative solutions

as found in the Pilot Records Act'' to protect past and prospective

employers subject to liability that is associated with the sharing of

sensitive information.

One commenter asks if the airport operator must obtain records for

only those employees of tenants who have had the criminal record checks

performed or for all employees of tenants with SIDA access.

Another commenter states that the NPRM should be more specific in

defining ``where the air carrier's responsibility for file maintenance

begins and the airport operator's ends.'' Also clarification is needed

about whether the air carrier or airport operator will be responsible

for maintaining the files of an air carriers' sub-contractors and sub-

tenants.

FAA Response: In response to commenters' desire to use contractors

the FAA has not changed the final rule concerning the handling of

criminal records by direct employees only. The information contained in

the criminal records is under the custody of the FBI and they determine

how the information will be handled. The FAA has been in contact with

the FBI to confirm this limitation regarding the handling by direct

employees. The FBI restrictions are contained in FBI regulations and

modifications to FBI interpretations are not currently being

considered.

Furthermore, with respect to using contractors since the regulation

requires a criminal record be processed through the FAA it remains

unclear what

[[Page 51210]]

services a contractor is providing to the regulated parties that are

necessary for compliance with this regulation.

In response to the comment about destruction of criminal records

the FBI does not currently have a standard regarding the destruction of

those records. With respect to destruction of employment history

investigation files the FAA does not generally prescribe means of

destroying records no longer necessary for regulatory compliance.

Discussion with the local FAA offices might be beneficial to determine

a means of appropriately destroying both types of records.

With respect to NATA's recommendation the FAA does not consider the

information needed for this regulation to be sensitive. This rule only

addresses the collection and confirmation of employment dates, which

are generally not considered confidential information. The FAA does not

agree that information required for this regulation necessitates

legislation.

Additionally, the contents of the investigative files should

contain only the information required for compliance with this

regulation. No personnel related materials, such as insurance papers or

training records need be included in the investigative file or other

information which might be construed as sensitive. The airport user is

strongly encouraged to redact information in the investigative files

that is not related to the requirements of this regulation. The FAA

believes that if only the information required for compliance with this

regulation is contained in the investigative file, then any concerns

about liability issues would be resolved. There is no requirement that

the airport user provide original paperwork to the airport operator,

however, the paperwork provided must be a truthful rendition of the

record.

The comment requesting clarification on the maintenance of files

for those contracted by the air carriers has been addressed in this

final rule. The FAA specifically holds the air carrier responsible for

the screening companies it hires to perform its screening functions.

The air carrier may delegate the performance and maintenance of Part 1

of the employment history investigation files to screening companies

but the air carriers remain responsible for compliance with this final

rule. Only the air carrier's direct employees are to maintain Part 2

investigative files.

For clarification on the maintenance of files the FAA would like to

point out for those airport operators who accept clarification from air

carriers, for screeners requiring unescorted access, that Part 1 of the

employment history investigation will be maintained by the air

carriers. Additionally, air carriers are required to conduct self-

audits and they are subject to regulatory audits performed by the FAA.

These audits are intended to assist air carriers with compliance

regarding this rule. Only air carriers, and not airport operators, have

the regulatory responsibility to conduct employment history

investigations on individuals seeking to perform screening functions

under this rule.

In this final rule the airport operator must, at the time it

accepts a certification, collect the completed investigative file and

either maintain or delegate through the certification, the maintenance

responsibility to the airport user. If the airport user maintains the

investigative file the rule requires the airport operator to conduct a

preliminary review of the file to ascertain that it is complete. The

preliminary review would lead to the rejection and return of those

files that appear to be incomplete. Any rejections due to

incompleteness should in no way inhibit re-submissions by the airport

user after the application has been completed. The preliminary review

is different from the auditing process where the investigative file is

assessed for accuracy and confirmation that the information was

verified.

The airport operator may accept a certification from the air

carrier, but need not receive the investigative file. The air carrier

is separately responsible under Sec. 108.33 for maintaining appropriate

employment investigative files.

13. Continuing Responsibilities (Secs. 107.31(l) and 108.33(l))

The FAA proposed that individuals who have been cleared for

screening or supervisory functions or unescorted SIDA access will be

obligated to report themselves to their employer if they are

subsequently convicted of any disqualifying crime. The FAA also

proposed that the tenant or contractor employer must report to the

airport operator or the air carrier that an individual may have a

possible conviction of a disqualifying crime. Additionally the FAA

proposed that once the airport operator or air carrier receives this

information it must determine the status of the conviction and take

appropriate action if the conviction is confirmed.

One commenter states that this proposal is meaningless because it

imposes no penalty on the individual for noncompliance. The employee

has more incentive not to report since a loss of SIDA access would

probably result in the loss of the employee's job.

The commenter also questions if the FAA is requiring that a

fingerprint check be done on individuals to investigate felony

convictions that may have occurred after the initial employment check.

FAA Response: The commenter is incorrect as there is potential for

a civil penalty under 14 CFR part 13 on this section as well as on all

sections of the security regulations.

The FAA understands that individuals who report themselves will

lose their unescorted access privileges. The FAA also is aware of the

potential for obtaining other positions at the airport that do not

require unescorted access privileges, many times with the same

employer. The same may not be true with those individuals seeking

positions as screeners.

There is no regulatory authority to request nor is there a

regulatory responsibility to obtain a fingerprint based criminal record

check after the initial employment check has been completed. However,

the airport operator and air carrier are obligated to comply with

Secs. 107.31(e)(2) and 108.33(e)(2) to determine if there is a

conviction. The FAA would also point out that a conviction of a felony

is not automatically disqualifying. Only a conviction of one of the

crimes listed in Secs. 107.31(b)(2) and 108.33(b)(2) is disqualifying.

In this final rule the FAA added Sec. 107.31(p)(1) which also

requires airport users to notify the airport operator if information

becomes available to them regarding a possible conviction of a

disqualifying crime of one of their employees.

14. Exceptions (Sec. 107.31(m))

The FAA proposed that the exception to the employment background

investigation requirement for individuals who have undergone a U.S.

Customs Service background investigation would no longer be recognized.

One commenter suggests that the proposal to remove the Customs

exception should result in a coordinated effort between the Customs

Service and the FAA to create one investigation process that would meet

the requirements of both agencies.

NATA states that the removal of the exception will result in a

redundant check for many employees requiring SIDA access that also

operate in Customs areas. NATA adds that the FAA needs to provide

further explanation why the Customs

[[Page 51211]]

background check no longer meets the requirements of the FAA

regulations.

ACI-NA and AAAE agree with the removal of the Customs exception and

states that the FAA should clarify that a new background check is not

necessary for those individuals who were authorized through acceptance

of the Customs Service background check before this rule takes effect.

FAA Response: Since publication of the unescorted access privilege

rule the FAA has determined that the Customs Service background checks

are not performed in a standard manner nationally. Customs regulations

do allow for variation. The FAA has made the determination that due to

the variation within the Customs Service the FAA will no longer

recognize the background checks performed by the Customs Service.

Since the Customs Service and the FAA serve different functions

having different missions and obligations it is unlikely that the two

agencies could mesh their requirements for one background

investigation.

Those individuals who were granted unescorted access based on the

Customs background check prior to the effective date of this rule will

be grandfathered as noted in Sec. 107.31(m)(4).

15. Investigations by Air Carriers and Tenants (Sec. 107.31(n))

The FAA proposed that when the airport operator chooses to accept a

tenant's certification the airport operator must collect and maintain

the entire employment history investigation file.

Several commenters oppose the proposal that airport operators

collect and maintain the entire history background investigation files

because it would impose substantial administrative, filing, storage,

and cost burdens on the airport operator, while offering minimal

security justification.

ACI-NA and AAAE state that this requirement will make the airport

operator liable for these records and their accuracy, which should be

the responsibility of the air carriers and tenants.

A commenter states that the proposal would require the

dissemination of confidential and personal information to more than one

hundred airports, increasing the possibility of unauthorized

disclosure.

RAA recommends that the employer maintain a copy of the background

employment investigation files at a central location while making them

available for FAA audit. This would meet the needs of the FAA and

protect the privacy of individual employees. Other commenters suggest

that airport tenants should maintain their employee background check

records at a location in the airport where they will be available for

random inspections by the airport operator or FAA.

Two commenters state that requiring the airport operator to

maintain and control written records for air carriers and their

contractors is redundant since air carriers are required under

Sec. 108.33(m)(1) to have such files available on-airport.

A commenter states that airport operators should not be responsible

for foreign air carrier compliance and that the FAA should audit part

129 operators. In addition, the FAA should audit and hold accountable

tenants with approved Tenant Agreements.

One commenter raises the issue of discrimination against foreign

flags since under Sec. 107.31(n) only foreign air carriers and tenants

would be required to provide an entire employment background

investigation file. The commenter asks whether this will be an

automatic audit of all foreign air carrier submissions.

One commenter asks if the airport operator must obtain records for

only those employees of tenants who have had the criminal records check

performed or for all employees of tenants with SIDA access.

Another commenter states that the NPRM is confusing because

Sec. 107.31(k) appears to require airport operators to retain air

carrier employment application and background investigation

verification records, while Sec. 107.31(n)(2) seems to require only

completed tenant

RAA recommends that the employer maintain a copy of the background

employment investigation files at a central location while making them

available for FAA audit. This would meet the needs of the FAA and

protect the privacy of individual employees. Other commenters suggest

that airport tenants should maintain their employee background check

records at a location in the airport where they will be available for

random inspections by the airport operator or FAA.

Two commenters state that requiring the airport operator to

maintain and control written records for air carriers and their

contractors is redundant since air carriers are required under

Sec. 108.33(m)(1) to have such files avialable on-airport.

A commenter states that airport operators should not be responsible

for foreign air carrier compliance and that the FAA should audit part

129 operators. In addition, the FAA should audit and hold accountable

tenants with approved Tenant Agreements.

One commenter raises the issue of discrimination against foreign

flags since under Sec. 107.31(n) only foreign air carriers and tenants

would be required to provide an entire employment background

investigation file. The commenter asks whether this will be an

automatic audit of all foreign air carrier submissions.

One commenter asks if the airport operator must obtain records for

only those employees of tenants who have had the criminal records check

performed or for all employees of tenants with SIDA access.

Another commenter states that the NPRM is confusing because

Sec. 107.31(k) appears to require airport operators to retain air

carrier employment application and background investigation

verification records, while Sec. 107.31(n)(2) seems to require only

completed tenant employment background investigation files to be

obtained by the airport operator.

A commenter requests that the FAA clarify that if the file is

incomplete and rejected, there is no liability for loss of employment

caused by the airport operator's action.

A commenter asks whether the original background investigation file

or merely a copy should be submitted to the airport operator and asks

``[i]f the original is submitted, will this then relieve the carrier of

the audit by the FAA?''

Another commenter states that the rule should be modified to

require airport operators to accept the air carrier's certification

that a background check has been performed. This commenter adds that

with the adoption of Sec. 108.14 carriers are fully liable for

falsification. Carriers should only have to conform to a single set of

regulations rather than different requirements of different

requirements at different airports.

FAA Response: In response to commenters who say they will suffer

economic hardship if they are required to maintain the employment

history files for all person granted unescorted access, the FAA has

modified these requirements in the final rule. When an airport operator

has accepted an airport user's certification, the airport operator then

conducts a preliminary review of the investigative files of those

individuals who are named in the certification. After the preliminary

review of each employment history file the airport operator may return

the file to the airport user to maintain as agreed to in the

certification. Consistent with common business practices, airport users

have the space, equipment, and the personnel to handle their normal

[[Page 51212]]

employment application paperwork. This rule requires certain

information be collected for compliance with Part 1 of the

investigative process. The FAA has viewed examples where the needed

information is provided in 4 pages or less. Therefore the FAA is

confident that the airport user will not experience any additional

burden in maintaining the paperwork required. Providing the airport

user with the opportunity to maintain Part 1 of the investigative file

should alleviate anyone's concern about liability. Given the

requirements of this regulation the required investigative file will

lack confidential and personal information normally associated with

employment applications.

It is true, however, that Part 2 of the employment history

investigation, when required, will be conducted for the airport users

entirely by the airport operator. So there may in fact be limited

filing for the airport operator; however it would be far less than the

NPRM had proposed.

Two commenters misunderstood the NPRM to state that the airport

operators would maintain the files of part 108 air carriers. This is

not the FAA's intent. The airport operator is not expected to handle

any air carrier investigative files kept in compliance with this rule.

The airport operator is only expected to keep the certification offered

to them by the part 108 air carriers regarding unescorted access

privileges. There is no expectation that the airport operator will

conduct a preliminary review of the air carrier investigative files.

The part 108 air carriers as regulated parties will be responsible for

all investigative files pertaining to those individuals granted

unescorted access.

The final rule also responds to comments concerning foreign air

carriers. The FAA's policy does not discriminate against foreign air

carriers. At the present time the FAA has no other means to reach the

part 129 air carriers other than to view them as airport users and it

is imperative that the security regulations apply to everyone who has

access to an airport. Accordingly, the final rule allows more

flexibility regarding the investigative files and offers relief to the

part 129 air carriers. The final rule will allow the part 129 air

carriers to maintain their own employees' files but keeps in place the

airport's authority to ensure only those individuals who have been

properly vetted will have access to the airport's SIDA. The final rule

will eliminate the need for making copies of the individual's

employment investigative file. The decision is up to the part 129 air

carrier to offer a certification regarding the completion of an

employment history investigation on an individual seeking unescorted

access and at the discretion of the airport operator to accept it. The

airport operator will conduct the procedures associated with Part 2

requirements for the part 129 air carriers, as it will do for other

airport users.

In response to the comment that there is discrimination against

foreign air carriers the FAA emphasizes that all investigative files

are subject to audits by the FAA to ascertain compliance with the

regulation.

Another commenter expressed concern about incomplete or rejected

files. In such instances the airport operator should advise the airport

user that the paperwork is incomplete so that the airport user and the

affected individual would then have an opportunity to complete the

paperwork. The air carriers are reminded that there is not obligation

for the airport operators to accept certifications. The final rule

states in Sec. 107.31(n) that the operators are in compliance when they

accept the certification.

Practical reasons dictate the employment history investigative

files for screeners be located at the airport and not the air carriers'

corporate offices. The main reason centers on logistics. The files need

to be available to local FAA agents with regulatory responsibility to

inspect records for compliance. Each location should therefore have an

air carrier representative named to handle the sensitive issues that

may arise relative to Part 2 of the employment history investigations.

16. Airport Operator/Air Carrier Responsibilities (Secs. 107.31(o)(1)

and (2) and 108.33(m)(1) and (2))

The FAA proposed no changes to the requirement that the airport

operator designate the airport security coordinator (ASC) responsible

for reviewing and controlling the results of the employment background

investigations and for serving as the contact to receive notification

from individuals of their intent to correct their criminal record. The

FAA proposed changing Secs. 107.31(g)(1) and (2) to Secs. 107.31(o)(1)

and (2).

The FAA proposed a new Sec. 108.33(m). Proposed paragraph (m)(1)

would require the air carrier to designate an individual at each

airport to control and maintain the employment background investigation

files for individuals for whom the air carrier has made a certification

to the airport operator. Proposed paragraph (m)(2) would require the

air carrier to designate an individual in its security program to

control the employment background investigation files of individuals

for whom the air carrier conducts investigations, including screeners

and their supervisors.

Comments received on proposed Secs. 107.31(o)(1) and (2) and

108.33(m) are as follows:

ACI-NA and AAAE states that the ASC should be permitted to

designate other airport security staff or security contractor staff to

fulfill the ASC role. The commenter states that it is not feasible at

many airports for one or two individuals to accomplish these tasks and,

therefore recommends that the words ``or designee'' be inserted after

``Airport Security Coordinator'' in Sec. 107.31(o)(1) and (2).

The same commenter states that airport tenants should be regulated

directly by the FAA rather than laying the entire security enforcement

responsibility for them upon the airport operators.

The same commenter adds that the ``legal implications and

liabilities associated with airport operating municipalities, states or

other entities becoming involved in the employment practices of private

companies should be fully explored.''

Another commenter recommends that part 107 require airlines to

declare a sponsor for the contractor who would be responsible for the

background investigations, audits and maintenance of its files.

Two commenters state that the proposed regulation does not clarify

who is responsible for ensuring that the background investigations and

audits are completed for contractors and screening companies who

service several different airlines at the same airport. According to

these comments, at many airports the responsibility of contracting with

a contractor falls on an informal ``consortium'' of multiple carriers,

or on individual airlines on a rotating basis. The comments suggest

that the FAA treat screening companies in the same manner as other

airport tenants by requiring each screening company to provide a

certification directly to the airport operator.

A commenter suggests that the regulations include a provision

permitting the air carriers to review, audit and exercise other

oversight functions regarding the airport operator's handling of the

screener background investigations. This would allow the air carriers

to discharge their responsibility to maintain ultimate control of the

screening function.

A commenter recommends that the FAA establish procedures for air

carriers to notify the FAA of central locations

[[Page 51213]]

where records are maintained; designate the corporate offices which

maintain the records; the required to make the records available for

FAA inspection; and be required to audit the employment background

investigations.

A commenter raised the issue of the threat of litigation against

air carriers resulting from disclosure and states that the files must

be kept in a secure location in the air carrier's human resources

office.

A commenter states that storing the background investigation files

should be the responsibility of the firm conducting the background

check. Another commenter proposes that the employment background

investigative records be kept on file by a FAA Central Records Office

to alleviate complications when a security cleared person changes jobs.

Another commenter states that, if the FAA decides to establish a

certification program for screening companies, those companies would be

permitted to receive criminal history information from the FBI and

could maintain their own background information files. The commenter

states that requiring the air carrier to receive personal and

confidential criminal history information dealing with the employee of

another company is both unreasonable and unethical.

One commenter supports the proposal in Sec. 108.33(m) that air

carriers designate an individual at each airport to maintain and

control employment background investigation files. Currently employment

background audit attempts by Air Authority police indicate that records

are usually maintained at each airline general office and are

inaccessible or not available for a timely review.

One commenter states that the rule should be modified to require

airport operators to accept the air carrier's certification that a

background check has been performed. Furthermore, with the adoption of

14 CFR Sec. 108.14 (sic), carriers are fully liable for falsification.

Carriers should only have to conform to a single set of regulations

rather than different requirements at different airports.

FAA Response: In response to the comment about permitting designees

to fulfill the role of ASC the FAA has already developed a policy for

the use of designees by ASCs. This policy remains in effect for this

final rule.

The FAA is unsure why ACI-NAA and AAAE believe the airport would be

liable for ``employment practices'' of private companies. The private

company may, within certain limits, employ anyone it wishes. The

federal regulations apply to those seeking to perform specific job

functions. If the individual cannot fulfill a specific job's

requirements, in compliance with the federal regulation, the company

may still employ the individual in another capacity. Therefore the

employability of the individual rests with the private company and not

the airport operator.

In addressing the comment about sponsorship the FAA understands

that some contractors may only seek unescorted access for one carrier

and for a short duration of time. The FAA's only concern is that one of

the regulated parties must be responsible for those individuals.

In response to the two comments regarding the issue of who is

responsible for airport users the FAA reiterates that the airport

operators are responsible for the security of the airport. The air

carriers are responsible for their direct employees and those screening

companies they hire to perform screening functions. Furthermore, it is

the airport operators' responsibility to conduct the employment history

investigations to perform the audits of any contractors other than

screeners. This regulation allows the airport operator to consider

contractors as airport users. This regulation likewise allows the

airport operator to maintain the employment history files of those

seeking unescorted access if the airport operator so chooses. The FAA

leaves to the discretion of the airport operator whether or not the air

carrier should take responsibility for certain contractors, other than

screeners. The FAA encourages discussion between the airport operators

and the air carriers regarding other air carrier contractors.

In response to which air carrier would be responsible for screening

companies servicing multiple air carriers at one airport the FAA

suggests that the air carriers use the same local procedures which are

currently used for other security compliance issues. If there is reason

to believe the same procedures cannot be used then it is recommended

that all pertinent parties meet to develop a new procedure which is

satisfactory to all, just as was done to create the current procedures.

It is the responsibility of the air carriers that hire screening

companies to conduct, audit and exercise requisite oversight functions

of the screening companies. The final rule states these

responsibilities in Sec. 108.33. Since the part 108 air carriers are

charged with maintaining employment history investigation files the FAA

will work closely with them regarding the exact location of the files.

The FAA wishes to clarify that nothing in this final rule requires or

authorizes the Airport Authority Police to audit screener employment

history investigative files.

One commenter indicated the investigative files should be the

responsibility of the firm that conducts the background check. The FAA

will assume this comment concerns those private companies that perform

pre-employment background checks for airport users. If those companies

are also performing Part 1 of the employment history investigations for

this rule they are doing so at the request of the airport users. If the

airport operator has delegated the conduct of Part 1 of the employment

history investigation to the airport user, then the user, under

certification, will maintain the files on behalf of the airport

operator. This rule does not address any further delegation for the

maintenance of Part 1 files. If certifications are accepted by the

airport operator certification requirements must be met. The

responsibility to delegate or not delegate maintenance of the

investigative files rests with the airport operator.

One commenter questioned why the FAA did not provide screening

companies with the authority to receive criminal records. Screening

companies are not authorized to have such access by 49 U.S.C. 44936.

This commenter also believed it was ``unreasonable and unethical'' for

a carrier to receive confidential criminal record information on

another company's employee. The FAA does not agree with this comment.

For a discussion of these issues see sections 6 and 12 of the

Discussion of Comments.

It was not the intent of the FAA in the unescorted access rule, nor

is it the intent of this rule, to require the airport operators to

review the employment history investigative files of air carrier

employees seeking unescorted access. The certification process was

intended to handle the request and granting of unescorted access

between air carriers and airport operators. However, the FAA will not

remove the airport operators' prerogative to protect its property. The

FAA audits and the air carrier's self-audits should supply sufficient

assurances that compliance with this regulation is being met. The FAA

encourages airport operators to rely on the air carriers'

certification.

The FAA has expanded the air carrier's responsibilities listed in

Sec. 108.33(m). This paragraph lists the points of contact required for

notifications and maintenance of Parts 1 and 2 of the employment

history investigative files for both direct

[[Page 51214]]

employees and screening company employees.

17. Audits of Background Investigations (Secs. 107.31(o)(4) and

108.33(m)(5))

Proposed Sec. 107.31(o)(4) would require the airport operator to

audit the employment background investigations performed in accordance

with this section, except those employment background investigations of

air carriers certifying to the airport operator compliance with

Sec. 108.33(b). Proposed Sec. 108.33(m)(5) would require the air

carrier to audit the employment background investigations. The audit

process would be set forth in the air carrier approved security

program.

Many comments were received on the audit requirements. Most of the

comments expressed a concern that entities should be required to audit

only those investigations concerning their own personnel.

ATA and ACI-NA and AAAE believe that the FAA should audit airport

operators, air carriers, and screening companies, once they are FAA

certificated, independently for compliance with the regulations.

According to commenters, a FAA audit would ensure that audit procedures

do not vary among regions and agents.

Some commenters state that requiring regular audits of all

background investigations would be time consuming and costly with no

corresponding increase in security.

FAA Response: The FAA's intent is to ensure a means of evaluating

employment history investigations records and to confirm the validity

and accuracy of the information they contain.

In addition to the self-audits, required by 49 U.S.C.

Sec. 44936(a)(3), the FAA will also be conducting audits of airport

operators, and air carriers. Screening companies will be audited by the

responsible air carriers. FAA audits when conducted on screening

companies will be considered as part of an audit on the responsible air

carrier.

The FAA has carefully considered all comments on the audit

requirements. Most of these comments are specific and apply to the

self-audit procedures that will be set forth in the air carrier and

airport approved security programs. The FAA will provide an opportunity

to comment on the specifics of the audit process in accordance with

Secs. 107.11 and 108.25.

Section 306 of the Act also directs the FAA to provide for the

periodic audit of the effectiveness of the criminal records checks. The

FAA in its oversight capacity has previously conducted audits and will

continue to conduct audits on employment history investigations. The

FAA views self-auditing as a valuable tool which can assist the

regulated party in effective rule implementation. The final rule

requires air carriers and airport operators to audit their employment

history investigations. The self-audit requirements apply to both Part

1 and Part 2 of the employment history investigation.

This final rule provides, in general terms, information on audits

to be conducted by regulated parties on employment history

investigations. The audit functions pertaining to the employment

history investigations have important security benefits; however, for

security reasons, the exact auditing procedures cannot be described in

a public document. Therefore the specific requirements regarding the

audits will be proposed as amendments to the security programs.

18. General--Cargo and Baggage Operations

The FAA requested comments on whether to expand the employment

history investigation requirement to include persons who perform

security functions related to cargo and baggage outside of the SIDA. In

general, commenters who responded to the FAA's question opposed such an

expansion, and several stated that to include such a requirement in a

final rule would violate the Administrative Procedures Act.

FAA Response: While Section 304 of the Act provides the

Administrator with discretionary authority to require employment

history investigations for other individuals who exercise security

functions associated with baggage or cargo, the FAA did not propose to

expand the requirement for such investigations beyond checkpoint

screeners and their supervisors. As explained in the preamble to the

proposed rule most air carrier baggage and cargo personnel currently

have unescorted access to the SIDA and thus are currently subject to

access investigations.

If the FAA had received comments supporting the inclusion of those

who perform security functions outside the SIDA, related to cargo and

baggage, the FAA would have addressed that concern in a separate NPRM.

However, comments were insufficient to support the need for an

additional proposal. Therefore, the FAA has decided not to expand the

requirement.

19. Summary of Economic Comments

This section summaries the economic comments and the FAA's

responses. A detailed discussion of these comments and responses is

contained in the full regulatory evaluation in the docket for this

final rule.

a. Comments related to extending criminal background checks for

screeners. Two commenters state that the FAA's use of 54 days for the

length of time to perform fingerprint checks was underestimated. These

commenters believe that the actual length of time is longer, and should

be reflected in the costs.

Two commenters also state that the assumption, based on the

historical record, that only 0.4% of the applicants would need to be

fingerprinted and a negligible amount would have a prior criminal

conviction was inaccurate. These commenters believe, based on personal

experience, that both estimates should be higher.

One commenter believes that the estimate of $55 for total staff

time and supplies is too low, given all that is required.

Two commenters request that the FAA make clear who is paying the

cost of fingerprint processing and that the local FAA offices are

charging the correct rate.

One commenter, a catering company, does not believe that escorting

a new hire for more than 30 days is viable. Another commenter,

representing an airport, says that if the verbiage on criminal history

background check document forms is changed, there would be increased

costs due to paperwork changes.

FAA Response: The FAA cannot consider each airport's turnaround

time individually, and will continue to use the national average for

purposes of costing the rule. The FAA agrees that a 54 day processing

time is too long, but has no means at its disposal to shorten it.

The rates used, of 0.4% and 0.0%, were based on a review of the

data on the results of the first eight months of the current

Secs. 107.31 and 108.33, from February through September 1996. Neither

commenter submitted any data or documentation showing rates different

than these, so the FAA will continue to use these rates.

Much of what the commenter believes should be considered are not

required; the economic analysis costed out those parts of the proposed

rule that would add cost.

Regarding who pays what section of the cost of fingerprinting, the

FAA is required by Executive Order to look at all costs to society and

made clear, in its analysis, who would pay what. With regards to the

cost of the criminal record checks, the FAA does not have control

[[Page 51215]]

over the cost of this process, so everyone needing fingerprinting would

pay the same standard rate.

With regards to escorting employees, the FAA believes that

conditions and requirements would be different for screeners than for

caterer employees and that the ability for a screener to work

supervised would be viable past 30 days. There are no document title

requirements in the Regulations; hence, there would be no requirement

to change any verbiage on the forms.

b. Comments related to removing the exemption that substitutes a

U.S. Customs Service (USCS) background check for a check based on the

requirements. A trade organization states that some airports report

that up to 60% of air carrier employee SIDA access media, plus a much

smaller percent of airport employees, were authorized through

acceptance of the USCS background check. Accordingly, this change could

be costly.

FAA Response: The FAA called for comments on the number of airport

employees who currently were granted unescorted access due to a

background check from the USCS. This was the only response, and is too

vague to help project cost data. There will be no additional costs due

to removing this exception.

c. Comments related to the requirement that the airport operators

and air carriers review the employee background documentation of their

own employees as well as any appropriate contractors or, in the case of

airports, airport users. Four commenters state that the requirement for

specific airport personnel to review the employment history check

documentation would increase their paperwork requirements, and would

require hiring of more employees and finding additional storage space.

There were several comments on the assumption (in the economic

analyses) that 5% of all employment history investigations would be

checked. These commenters believe that the FAA underestimated total

costs, in part due to a belief that the actual amount checked would be

greater than 5% as airports would want to check employees and avoid

potential liability problems.

One commenter contends that the costs associated with collecting

and filing records should be in the cost analysis, but are not.

FAA Response: The final rule will allow for the option that the

airport user could hold the required paperwork for their employees;

this would relieve the airport operator from having to maintain,

collect, and process the entire employment background investigation

file for each employee. Hence, airports will not need to hire

additional personnel or find additional storage space to handle these

files.

It is possible that the audit rate could be higher than 5% for some

airports; the FAA used an estimated 5% as an average for all airports

and calculated costs accordingly. This 5% applies to all persons with

unescorted access who had been subject to an employment background

check, and not all persons with unescorted access on file. There would

be no potential liability responsibility should an incident occur since

airport operators are not fully responsible for the compliance of the

airport user.

The airport user or the airport would be filing these papers in

their file cabinets anyway, so there would be no additional cost.

d. Comments related to the FAA's NPRM economic analysis. A trade

organization claims that it is difficult to know for certain what

variables were included in the economic analysis, particularly as they

refer to the costs of the employment verification process for

screeners. This same organization states that the assumed annual growth

rate and salaries for screeners are far too low given the intent to add

new explosive detection technologies at airports.

An airport commenter is concerned that the FAA's costs did not

include the additional costs airports must incur to fulfill Sec. 107.31

costs.

FAA Response: FAA's economic analysis makes it very clear what

administrative costs are included, taking into account two hours of a

paperwork/clerk specialist and one third of an hour of airport or air

carrier supervisor designee. The FAA agrees that the advanced skills

required for explosives detection technology will mean higher salaries

and an increase in the overall demand for and career development growth

rate of these screeners vis-a-vis other screeners. This information is

included in the data used to calculate the costs of this rule.

All costs connected with Sec. 107.31 were captured in the analysis

of the final rule for Unescorted Access Privilege (60 FR 51854) that

went into effect on January 31, 1996. This rule seeks to cover

individuals not covered by Sec. 107.31, and so the costs for this rule

are separate.

Economic Summary

Proposed and final rule 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 Federal Aviation

Administration (FAA) has determined that the final rule would generate

benefits that justify its costs and is not ``a significant regulatory

action'' as defined in the Executive Order or Department of

Transportation Regulatory Policies and Procedures. The rule will not

have a significant impact on a substantial number of small entities and

will not constitute a barrier to international trade. In addition, this

rule does not contain any Federal intergovernmental mandates, but does

contain a private sector mandate. However, because expenditures by the

private sector will not exceed $100 million annually, the requirements

of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

Cost of Compliance

The FAA has performed an analysis of the expected costs and

benefits of this regulation. In this analysis, the FAA estimated costs

for a 10-year period, from 1999 through 2008. As required by the Office

of Management and Budget (OMB), the present value of this stream was

calculated using a discount factor of 7 percent. All costs in this

analysis are in 1997 dollars.

The FAA estimates that in 1999, there will be 15,600 screeners and

screener supervisors affected by this rule, comprised of 1,400

checkpoint security supervisors (CSS), 100 shift supervisors, and

14,100 screeners. The analysis assumes loaded hourly wages (i.e., with

fringe benefits) of $6.25 for screeners, $7.31 for CSS's, and $11.00

for shift supervisors. Industry sources report, on average, annual

turnovers of 110% for all screeners, 85% for CSS's, and 20% for shift

supervisors. This turnover rate, of course, will vary by airport and

location. Given the difficulty of discerning the actual turnover rates

at individual airports, the FAA has opted to use these turnover rates

for the entire industry. In addition, the FAA assumes that the number

of screeners will grow at an annual rate of 1.5%.

There are three cost components that need to be considered. These

involve the fee for processing fingerprints; the time for a paperwork/

clerk specialist to take the fingerprints, do the requisite paperwork,

and mail the forms; and the need for this employee to be supervised.

[[Page 51216]]

Currently, a fingerprint check takes, on average, 54 days to be

processed. During this time period, this particular employee, if hired,

will need to be supervised. This employee's productivity will be low

for he or she will not be able to exercise any independent judgment;

all screened baggage will also need to be checked by this employee's

supervisor, and this employee will not be able to do tasks such as

using the metal detector or hand wand, or perform a physical search. On

the other hand, at times, this employee might be doing tasks that do

not need 100% attention from a supervisor. Accordingly, the FAA will

use a 15% productivity rate in this analysis.

The alternative will be to delay hiring the employee until the

results of the fingerprint check come back. Given the high turnover

rate of screeners, there is a good likelihood at many locations that

this person can then be hired based on another job opening.

The FAA examined the cost of both of these alternatives. The lower

cost alternative will be to delay hiring this person until the

fingerprint check results return; in such a situation, the only costs

will be the costs of fingerprinting the employee. The higher cost

alternative will be to hire this person, have this person supervised,

and pay them even though their productivity will be low. Screeners will

be supervised by another screener, at a total cost of about $1,925 per

hire for the 54 day period. CSS's will be supervised by another CSS, at

a total cost of about $2,250 per hire for the 54 day period.

The current processing fee for a fingerprint investigation is $28;

the FAA has been paying the difference between that and the current

published fee of $24. Under this final rule, employers and/or employees

will pay the entire cost (with employees proscribed from handling the

fingerprint cards), while the FAA will no longer pay the $4 difference.

Hence these incremental changes cancel each other out.

Since January 31, 1996, all applicants for specific jobs requiring

unescorted access have been subject to a criminal background history

check; the FAA collected data on the results of the first eight months

of these applicants. Of the applications that were processed, 0.4% of

applicants needed to be fingerprinted. In addition, almost none had a

prior criminal conviction which disqualified them. In the absence of

other information, the FAA will use these percentages (0.4% and 0.0%,

respectively) in estimating the costs of this final rule. Due to both

the growth rate in screeners and the annual turnover rates, the FAA

estimates that the ten-year costs for the criminal history background

check portion of this final rule will range from $38,800 (net present

value, $33,300) to $1.16 million (net present value, $804,100), again,

the latter cost including the cost of supervision.

The FAA, in removing the USCS exemption in Sec. 107.31(m), has made

it clear that those individuals who were granted unescorted access

based on the Customs background check prior to the effective date of

this rule will be grandfathered. Hence, no employee who received

unescorted access based on a background check from USCS will have to

undergo a new check, and there will be no costs associated with the

removal of this exception.

This amendment will add a new requirement that will require the

airport operators and air carriers to review the employment background

documentation of their own employees as well as any appropriate

contractors or, in the case of airports, airport users. They will need

to develop and carry out processes by which they will examine the

accuracy and completeness of the employment background investigations

being accomplished on all of all listed parties.

The actual percentage to be audited may vary by airport and air

carrier and will be included in each's security program. The FAA

assumes that, on average, 5 percent of all employment background

investigations will be checked. The average check will involve a

paperwork/clerk specialist going through the employee's application and

checking to make sure that all items were accurate. The FAA estimates

that the average investigation will cost approximately $58.

Based on the number of employees at airports with unescorted access

privileges, specific employee growth rates, and annual attrition rates,

the FAA calculates ten year costs for the airports to be $3.96 million

(net present value, $2.72 million). Meanwhile, the air carriers will

need to run checks on the screeners and screener supervisors that are

hired during this time period. The ten-year costs for the air carriers

sum to $524,700 (net present value, $365,500).

The ten-year cost of this rule will range from $4.53 million (net

present value, $3.12 million) to $5.64 million (net present value,

$3.89 million).

Analysis of Benefits

The purpose of this final rule is to enhance aviation security. The

primary benefit of the rule will be increased protection to Americans

and others traveling on U.S. domestic air carrier flights from acts of

terrorism. The changes envisioned in this rule are an integral part of

the total program needed by the airports, air carriers, and the FAA to

prevent a criminal or terrorist incident in the future.

Since the mid-1980's, the major goals of aviation security have

been to prevent bombing and sabotage incidents. Preventing an explosive

or incendiary device from getting on board an airplane is one of the

major lines of defense against an aviation-related criminal or

terrorist act. The individuals covered by this final rule play a major

role in preventing such occurrences. It is essential that potential

employees that may have criminal records or questionable backgrounds be

investigated, and, if certain conditions are met, denied the

opportunity to conduct security-related activities. Such individuals

could definitely be a threat to aviation security.

In 1996, both Congress and the White House Commission on Aviation

Safety and Security recommended further specific actions to increase

aviation security. The Commission stated that it believes that the

threat against civil aviation is changing and growing, and recommended

that the federal government commit greater resources to improving

aviation security. President Clinton, in July 1996, declared that the

threat of both foreign and domestic terrorism to aviation is a national

threat. The U.S. Congress recognized this growing threat in the Federal

Aviation Reauthorization Act of 1996 by: (1) authorizing money for the

purchase of specific anti-terrorist equipment and the hiring of extra

security personnel; and (2) requiring the FAA to promulgate additional

security-related regulations including this current rulemaking action.

The cost of a catastrophic terrorist act can be estimated in terms

of lives lost, property damage, decreased public utilization of air

transportation, etc. The most deadly and expensive example of the type

of event that aviation security is trying to prevent is the Pan Am 103

tragedy over Lockerbie, Scotland. Since the benefits of this rule will

apply primarily to domestic flights, which are flown primarily by

narrow-bodied airplanes, rather than international flights, which are

flown primarily by wide-bodied airplanes, the FAA examined the costs

associated with this catastrophe as they will apply to a domestic

tragedy. A conservative estimate of these costs is $832.4 million. This

high cost underscores the consequences of not taking prudent security-

related steps.

Some benefits can be quantified--prevention of fatalities and

injuries and

[[Page 51217]]

the loss of aircraft and other property. Other benefits are no less

important, but are probably impossible to quantify--the perception of

improved security on the part of the traveling public, and general

gains for the U.S. attributable to the commitment to enhance aviation

security.

Comparison of Costs and Benefits

The ten-year cost of this rule would range from $4.53 million (net

present value, $3.12 million) to $5.64 million (net present value,

$3.89 million). This cost needs to be compared to the possible tragedy

that could occur if a bomb or some other incendiary device were to get

onto an airplane and cause an explosion. Recent history not only points

to Pan Am 103's explosion over Lockerbie, Scotland, but also the

potential of up to twelve American airplanes being blown up in Asia in

early 1995. While the specific points in this regulation may not, by

themselves, have been factors in the occurrence of Pan Am 103 or the

prevention of the culmination of the conspiracy in Asia, these

potential devastating costs emphasize the consequences of not taking

sensible security-related steps.

Congress has mandated that the FAA promulgate these regulations.

Congress, which reflects the will of the American public, has

determined that this regulation is in the best interest of the nation.

Because this regulation reflects the will of the American people, and

because its cost is low compared to the potential catastrophe of a

single bomb explosion on an airplane, the FAA finds this rule cost-

beneficial.

Initial Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 establishes ``as a principle

of regulatory issuance that agencies shall endeavor, consistent with

the objective of the rule and of applicable statutes, to fit regulatory

and informational requirements to the scale of the business,

organizations, and governmental jurisdictions subject to regulation.''

To achieve that principle, the Act requires agencies to solicit and

consider flexible regulatory proposals and to explain the rationale for

their actions. The Act covers a wide-range of small entities, including

small businesses, not-for-profit organizations and small governmental

jurisdictions.

Agencies must perform a review to determine whether a proposed or

final rule will have a significant economic impact on a substantial

number of small entities. If the determination is that it will, the

agency must prepare a regulatory flexibility analysis (RFA) as

described in the Act.

However, if an agency determines that a proposed or final rule is

not expected to have a significant economic impact on a substantial

number of small entities, section 605(b) of the 1980 act provides that

the head of the agency may so certify and an RFA is not required. The

certification must include a statement providing the factual basis for

this determination, and the reasoning should be clear.

Security Screening Companies

This rule will affect companies that perform security screening as

well as specific airports. There are currently 58 companies that

provide security screening services; 32 of these are small entities. To

estimate the annual cost impact for each screening company, the FAA

calculated what the maximum annual cost of the regulations will be per

screener over the time period examined by this analysis, $11.66, and

multiplied by the number of screeners that that company has. Based on

these calculations, the FAA concludes that the costs are ``de minimus''

on all but four small entities; the highest cost for these four small

entities is $5,000.

Airports

The airports covered by this rule are those that are regularly

served by scheduled passenger aircraft operations having airplanes with

a passenger seating configuration of greater than 60 seats, are subject

to screening programs defined in the current Sec. 108.5, and are

required to have an Airport Security Program (ASP) under the current

Sec. 107.3(b). There are 74 such airports that have over 2 million

people screened per year and 185 such airports that have less than 2

million people screened per year.

Part 107 affects airports classified under Standard Industrial

Classification (SIC) 4582. The SBA's small entity size standards

criterion define a small airport as one owned by a county, city, town

or other jurisdiction having a population of 49,999 or less. If two or

more towns, cities, or counties operate an airport jointly, the

population size of each are totaled to determine whether that airport

is small. In addition, all privately owned, public-use airports are

considered small.

The most recent population data for cities, counties, and states is

taken from the 1990 Census and this was used to determine the

population of the appropriate jurisdiction. Thirty-seven of the 259

airports that meet the above definition are owned by jurisdictions with

populations less than 50,000. Each of these has less than 2 million

person screenings per year. As discussed above, an average of 554

employees have unescorted access privileges at each of these airports

at the end of 1996. The average one year cost for any such airport is

$215.

Conclusion

The FAA conducted the required review of this amendment and

determined that it will not have a significant economic impact on a

substantial number of small entities. Accordingly, pursuant to the

Regulatory Flexibility Act, 5 U.S.C. 605(b), the Federal Aviation

Administration certifies that this rule will not have a significant

impact on a substantial number of small entities.

International Trade Impact Statement

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. Since both domestic and international air carriers use

screeners, this final rule change will have an equal effect on both.

Unlike domestic air carriers that compete with foreign air carriers,

domestic airports are not in competition with foreign airports. For

this reason, a trade impact assessment is not be applicable for

domestic airports.

Unfunded Mandates Determination

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 ``significant intergovernmental mandate.'' A

``significant intergovernmental mandate'' under the Act is any

provision in a Federal agency regulation that will 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

[[Page 51218]]

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.

This final rule does not contain any Federal intergovernmental

mandates or private sector mandates.

Federalism Implications

These regulations do not have substantial direct effects on the

states, or on the relationship, or distribution of power and

responsibilities, between the Federal Government and the states. Thus,

in accordance with the federalism principles and policymaking criteria

of Executive Order 13083, this agency has determined that no federalism

implications exist necessitating a Federalism Consultation.

International Civil Aviation Organization (ICAO) 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.

The FAA finds no corresponding International Civil Aviation

Organization regulations or Joint Aviation Regulations; therefore, no

differences exist.

Paperwork Reduction Act

Under the requirements of the Paperwork Reduction Act of 1995, the

Office of Management and Budget has approved the information collection

burden for this rule and assigned it OMB Approval Number 2120-0628.

List of Subjects in 14 CFR Parts 107 and 108

Air carriers, Air transportation, Airlines, Airplane operator

security, Aviation safety, Reporting and recordkeeping requirements,

Security measures, Transportation, Weapons.

The Amendments

In consideration of the foregoing, the Federal Aviation

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

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

PART 107--AIRPORT SECURITY

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

follows:

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

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

Sec. 306, Pub. L. 104-264, 110 Stat. 3213.

2. Section 107.31 is revised to read as follows:

Sec. 107.31 Employment history, verification and criminal history

records checks.

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

all airport operators; airport users; individuals currently having

unescorted access to a security identification display area (SIDA) that

is identified by Sec. 107.25; all individuals seeking authorization

for, or seeking the authority to authorize others to have, unescorted

access to the SIDA; and each airport user and air carrier making a

certification to an airport operator pursuant to paragraph (n) of this

section. An airport user, for the purposes of Sec. 107.31 only, is any

person making a certification under this section other than an air

carrier subject to Sec. 108.33.

(b) Employment history investigations required. Except as provided

in paragraph (m) of this section, each airport operator must ensure

that no individual is granted authorization for, or is granted

authority to authorize others to have, unescorted access to the SIDA

unless the following requirements are met:

(1) The individual has satisfactorily undergone Part 1 of an

employment history investigation. Part 1 consists of a review of the

previous 10 years of employment history and verification of the 5

employment years preceding the date the appropriate investigation is

initiated as provided in paragraph (c) of this section; and

(2) If required by paragraph (c)(5) of this section, the individual

has satisfied Part 2 of the employment history investigation. Part 2 is

the process to determine if the individual has a criminal record. To

satisfy Part 2 of the investigation the criminal record check must not

disclose that the individual has been convicted or found not guilty by

reason of insanity, in any jurisdiction, during the 10 years ending on

the date of such investigation, of any of the crimes listed below:

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

aircraft registration violation, 49 U.S.C. 46306;

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

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

46312;

(iv) Aircraft piracy, 49 U.S.C. 46502;

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

U.S.C. 46504;

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

U.S.C. 46506;

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

46505;

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

(ix) Aircraft piracy outside the special aircraft jurisdiction of

the United States, 49 U.S.C. 46502(b);

(x) Lighting violations involving transporting controlled

substances, 49 U.S.C. 46315;

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

air carriers or foreign air carriers contrary to established security

requirements, 49 U.S.C. 46314;

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

32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

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

of an explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

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

substance;

(xxiv) Felony arson; or

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

criminal acts.

(c) Investigative steps. Part 1 of the employment history

investigation must be competed on all persons listed in paragraph (a)

of this section. If required by paragraph (c)(5) of this section, Part

2 of the employment history investigation must also be completed on all

persons listed in paragraph (a) of this section.

(1) The individual must provide the following information on an

application form:

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

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

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

consecutive months, during the previous 10-year period.

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

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

(2) The airport operator or the airport user must include on the

application form a notification that the individual will be subject to

an employment history verification and possibly a criminal records

check.

(3) The airport operator or the airport user must verify the

identity of the individual through the presentation of two forms of

identification, one of which must bear the individual's photograph.

[[Page 51219]]

(4) The airport operator or the airport user must verify the

information on the most recent 5 years of employment history required

under paragraph (c)(1)(ii) of this section. Information must be

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

(5) If one or more of the conditions (triggers) listed in

Sec. 107.31(c)(5)(i) through (iv) exist, the employment history

investigation must not be considered complete unless Part 2 is

accomplished. Only the airport operator may initiate Part 2 for airport

users under this section. Part 2 consists of a comparison of the

individual's fingerprints against the fingerprint files of known

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

comparison of the individual's fingerprints must be processed through

the FAA. The airport operator may request a check of the individual's

fingerprint-based criminal record only if one or more of the following

conditions exist:

(i) The individual does not satisfactorily account for a period of

unemployment of 12 consecutive months or more during the previous 10-

year period.

(ii) The individual is unable to support statements made on the

application form.

(iii) There are significant inconsistencies in the information

provided on the application.

(iv) Information becomes available to the airport operator or the

airport user during the investigation indicating a possible conviction

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

(d) Individual notification. Prior to commencing the criminal

records check, the airport operator must notify the affected individual

and identify the Airport Security Coordinator as a contact for follow-

up. An individual, who chooses not to submit fingerprints, after having

met a requirement for Part 2 of the employment investigation, may not

be granted unescorted access privilege.

(e) Fingerprint processing. If a fingerprint comparison is

necessary under paragraph (c)(5) of this section to complete the

employment history investigation the airport operator must collect and

process fingerprints in the following manner:

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

recorded on fingerprint cards approved by the FBI, and distributed by

the FAA for this purpose.

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

direct observation by the airport operator or a law enforcement

officer. Individuals submitting their fingerprints may not take

possession of their fingerprint card after they have been

fingerprinted.

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

fingerprints are obtained. The individual must present two forms of

identification, one of which must bear the individual's photograph.

(4) The fingerprint card must be forwarded to the FAA at the

location specified by the Administrator.

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

upon application. Airport operators must submit payment through

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

FAA,'' at the designated rate for each fingerprint card. Combined

payment for multiple applications is acceptable. The designated rate

for processing the fingerprint cards is available from the local FAA

security office.

(f) Determinaiton of arrest status. In conducting the criminal

record checks required by this section, the airport operator must not

consider the employment history investigation complete unless it

investigates arrest information for the crimes listed in paragraph

(b)(2) of this section for which no disposition has been recorded and

makes a determination that the arrest did not result in a disqualifying

conviction.

(g) Availability and correction of FBI records and notification of

disqualification. (1) At the time Part 2 is initiated and the

fingerprints are collected, the airport operator must notify the

individual that a copy of the criminal record received from the FBI

will be made available to the individual if requested in writing. When

requested in writing, the airport operator must make available to the

individual a copy of any criminal record received from the FBI.

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

individual described in paragraph (a) of this section, the airport

operator must advise the individual that the FBI criminal record

discloses information that would disqualify him/her from receiving

unescorted access and provide the individual with a copy of the FBI

record if it has been requested.

(3) The airport operator must notify an individual that a final

decision has been made to grant or deny authority for unescorted

access.

(h) Corrective action by the individual. The individual may contact

the local jurisdiction responsible for the information and the FBI to

complete or correct the information contained in his/her record before

any final decision is made, subject to the following conditions:

(1) Within 30 days after being advised that the criminal record

received from the FBI discloses disqualifying information, the

individual must notify the airport operator, in writing, of his/her

intent to correct any information believed to be inaccurate.

(i) Upon notification by an individual that the record has been

corrected, the airport operator must obtain a copy of the revised FBI

record prior to making a final determination.

(2) If not notification is received within 30 days, the airport

operator may make a final determination.

(i) Limits on dissemination of results. Criminal record information

provided by the FBI must be used solely for the purposes of this

section, and no person may disseminate the results of a criminal record

check to anyone other than:

(1) The individual to whom the record pertains or that individual's

authorized representative;

(2) Airport officials with a need to know; and

(3) Others designated by the Administrator.

(j) Employment status while awaiting criminal record checks.

Individuals who have submitted their fingerprints and are awaiting FBI

results may perform work within the SIDA when under escort by someone

who has unescorted SIDA access privileges.

(k) Recordkeeping. (1) Except when the airport operator has

received a certification under paragraph (n)(1) of this section, the

airport operator must physically maintain and control the Part 1

employment history investigation file until 180 days after the

termination of the individual's authority for unescorted access. The

Part 1, employment history investigation file, must consist of the

following:

(i) The application;

(ii) The employment verification information obtained by the

employer;

(iii) The names of those from whom the employment verification

information was obtained;

(iv) The date and the method of how the contact was made; and

(v) Any other information as required by the Administrator.

(2) The airport operator must physically maintain, control and when

appropriate destroy Part 2, the criminal record, for each individual

for whom a fingerprint comparison has been completed. Part 2 must be

maintained for 180 days after the termination of the individual's

authority for unescorted access. Only direct airport operator

[[Page 51220]]

employees may carry out this criminal record file responsibility. The

Part 2 criminal record file must consist of the following:

(i) The criminal record received from the FBI as a result of an

individual's fingerprint comparison; or

(ii) Information that the check was completed and no record exists.

(3) The files required by this section must be maintained in a

manner that is acceptable to the Administrator and in a manner that

protects the confidentiality of the individual.

(l) Continuing responsibilities. (1) Any individual authorized to

have unescorted access privileges or who may authorize others to have

unescorted access, who is subsequently convicted of any of the crimes

listed in paragraph (b)(2) of this section must, within 24 hours,

report the conviction to the airport operator and surrender the SIDA

access medium to the issuer.

(2) If information becomes available to the airport operator or the

airport user indicating that an individual with unescorted access has a

possible conviction for one of the disqualifying crimes in paragraph

(b)(2) of this section, the airport operator must determine the status

of the conviction. If a disqualifying conviction is confirmed the

airport operator must withdraw any authority granted under this

section.

(m) Exceptions. Notwithstanding the requirements of this section,

an airport operator may authorize the following individuals to have

unescorted access, or to authorize others to have unescorted access to

the SIDA:

(1) An employee of the Federal government or a state or local

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

employment, has been subjected to an employment investigation which

includes a criminal record check.

(2) A crewmember of a foreign air carrier covered by an alternate

security arrangement in the foreign air carrier's approved security

program.

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

requiring unescorted access by another airport operator, airport user

or air carrier.

(4) Those persons who have received access to a U.S. Customs

secured area prior to November 23, 1998.

(n) Investigations by air carriers and airport users. An airport

operator is in compliance with its obligation under paragraph (b) of

this section, as applicable, when the airport operator accepts for each

individual seeking unescorted access one of the following:

(1) Certification from an air carrier subject to Sec. 108.33 of

this chapter indicating it has complied with Secs. 108.33 of this

chapter for the air carrier's employees and contractors seeking

unescorted access; or

(2) Certification from an airport user indicating it has complied

with and will continue to comply with the provisions listed in

paragraph (p) of this section. The certification must include the name

of each individual for whom the airport user has conducted an

employment history investigation.

(o) Airport operator responsibility. The airport operator must:

(1) Prior to the acceptance of a certification from the airport

user, the airport operator must conduct a preliminary review of the

file for each individual listed on the certification to determine that

Part 1 has been completed.

(2) Designate the airport security coordinator (ASC), in the

security program, to be responsible for reviewing the results of the

airport employees' and airport users' employment history investigations

and for destroying the criminal record files when their maintenance is

no longer required by paragraph (k)(2) of this section;

(3) Designate the ASC, in the security program, to serve as the

contact to receive notification from individuals applying for

unescorted access of their intent to seek correction of their FBI

criminal record; and

(4) Audit the employment history investigations performed by the

airport operator in accordance with this section and those

investigations conducted by the airport users made by certification

under paragraph (n)(2). The audit program must be set forth in the

airport security program.

(p) Airport user responsibility.

(1) The airport user is responsible for reporting to the airport

operator information, as it becomes available, which indicates an

individual with unescorted access may have a conviction for one of the

disqualifying crimes in paragraph (b)(2) of this section; and

(2) If the airport user offers certification to the airport

operator under paragraph (n)(2) of this section, the airport user must

for each individual for whom a certification is made:

(i) Conduct the employment history investigation, Part 1, in

compliance with paragraph (c) of this section. The airport user must

report to the airport operator if one of the conditions in paragraph

(C)(5) of this section exist;

(ii) Maintain and control Part 1 of the employment history

investigation file in compliance with paragraph (k) of this section,

unless the airport operator decides to maintain and control Part 1 of

the employment history investigation file;

(iii) Provide the airport operator and the FAA with access to each

completed Part 1 employee history investigative file of those

individuals listed on the certification; and

(iv) Provide either the name or title of the individual acting as

custodian of the files, and the address of the location and the phone

number at the location where the investigative files are maintained.

PART 108--AIRPLANE OPERATOR SECURITY

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

follows:

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

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

4. Section 108.33 is revised to read as follows:

Sec. 108.33 Employment history, verification and criminal history

records checks.

(a) Scope. The following persons are within the scope of this

section:

(1) Each employee or contractor employee covered under a

certification made to an airport operator, pursuant to Sec. 107.31(n)

of this chapter, made on or after November 23, 1998.

(2) Each individual issued air carrier identification media that

one or more airports accepts as airport approved media for unescorted

access within a security identification display area (SIDA) as

described in Sec. 107.25 of this chapter.

(3) Each individual assigned, after November 23, 1998, to perform

the following functions:

(i) Screen passengers or property that will be carried in a cabin

of an aircraft of an air carrier required to screen passengers under

this part.

(ii) Serve as an immediate supervisor (checkpoint security

supervisor (CSS)), or the next supervisory level (shift or site

supervisor), to those individuals described in paragraph (a)(3)(i) of

this section.

(b) Employment history investigations required. Each air carrier

must ensure that, for each individual described in paragraph (a) of

this section, the following requirements are met:

(1) The individual has satisfactorily undergone Part 1 of an

employment history investigation. Part 1 consists of a review of the

previous 10 years of employment history and verifications of the 5

employment years preceding the date the employment history

investigation is initiated as provided in paragraph (c) of this

section; and

[[Page 51221]]

(2) If required by paragraph (c)(5) of this section, the individual

has satisfied Part 2 of the employment history investigation. Part 2 is

the process to determine if the individual has a criminal record. To

satisfy Part 2 of the investigation the criminal records check must not

disclose that the individual has been convicted or found not guilty by

reason of insanity, in any jurisdiction, during the 10 years ending on

the date of such investigation, of any of the crimes listed below:

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

aircraft registration violation, 49 U.S.C. 46306;

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

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

46312;

(iv) Aircraft piracy, 49 U.S.C. 46502;

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

U.S.C. 46504;

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

U.S.C. 46506;

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

46505;

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

(ix) Aircraft piracy outside the special aircraft jurisdiction of

the United States, 49 U.S.C. 46502(b);

(x) Lighting violations involving transporting controlled

substances, 49 U.S.C. 46315;

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

air carriers or foreign air carriers contrary to established security

requirements, 49 U.S.C. 46314;

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

32;

(xiii) Murder;

(xiv) Assault with intent to murder;

(xv) Espionage;

(xvi) Sedition;

(xvii) Kidnapping or hostage taking;

(xviii) Treason;

(xix) Rape or aggravated sexual abuse;

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

of an explosive or weapon;

(xxi) Extortion;

(xxii) Armed robbery;

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

substance;

(xxiv) Felony arson; or

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

criminal acts.

(c) Investigative steps. Part 1 of the employment history

investigations must be completed on all persons described in paragraph

(a) of this section. If required by paragraph (c)(5) of this section,

Part 2 of the employment history investigation must also be completed

on all persons listed in paragraph (a) of this section.

(1) The individual must provide the following information on an

application:

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

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

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

consecutive months, during the previous 10-year period;

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

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

(2) The air carrier must include on the application form a

notification that the individual will be subject to an employment

history verification and possibly a criminal records check.

(3) The air carrier must verify the identity of the individual

through the presentation of two forms of identification, one of which

must bear the individual's photograph.

(4) The air carrier must verify the information on the most recent

5 years of employment history required under paragraph (c)(1)(ii) of

this section. Information must be verified in writing, by

documentation, by telephone, or in person.

(5) If one or more of the conditions (triggers) listed in

Sec. 108.33(c)(5) (i) through (iv) exist, the employment history

investigation must not be considered complete unless Part 2 is

accomplished. Only the air carrier may initiate Part 2. Part 2 consists

of a comparison of the individual's fingerprints against the

fingerprint files of known criminals maintained by the Federal Bureau

of Investigation (FBI). The comparison of the individual's fingerprints

must be processed through the FAA. The air carrier may request a check

of the individual's fingerprint-based criminal record only if one or

more of the following conditions exist:

(i) The individual does not satisfactorily account for a period of

unemployment of 12 consecutive months or more during the previous 10-

year period.

(ii) The individual is unable to support statements made on the

application form.

(iii) There are significant inconsistencies in the information

provided on the application.

(iv) Information becomes available to the air carrier during the

investigation indicating a possible conviction for one of the crimes

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

(d) Individual notification. Prior to commencing the criminal

records check, the air carrier must notify the affected individuals and

identify a point of contact for follow-up. An individual who chooses

not to submit fingerprints may not be granted unescorted access

privilege and may not be allowed to hold screener or screener

supervisory positions.

(e) Fingerprint processing. If a fingerprint comparison is

necessary under paragraph (c)(5) of this section to complete the

employment history investigation the air carrier must collect and

process fingerprints in the following manner:

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

recorded on fingerprint cards approved by the FBI and distributed by

the FAA for this purpose.

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

direct observation by the air carrier or a law enforcement officer.

Individuals submitting their fingerprints must not take possession of

their fingerprint card after they have been fingerprinted.

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

fingerprints are obtained. The individual must present two forms of

identification, one of which must bear the individual's photograph.

(4) The fingerprint card must be forwarded to FAA at the location

specified by the Administrator.

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

upon application. Air carriers must submit payment through corporate

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

the designated rate for each fingerprint card. Combined payment for

multiple applications is acceptable. The designated rate for processing

the fingerprint cards is available from the local FAA security office.

(f) Determination of arrest status. In conducting the criminal

record checks required by this section, the air carrier must not

consider the employment history investigation complete unless it

investigates arrest information for the crimes listed in paragraph

(b)(2) of this section for which no disposition has been recorded and

makes a determination that the arrest did not result in a disqualifying

conviction.

(g) Availability and correction of FBI records and notification of

disqualification. (1) At the time Part 2 is initiated and the

fingerprints are collected, the air carrier must notify the individual

that a copy of the criminal record received from the FBI will be made

available to the individual if requested in writing. When requested in

writing, the air carrier must make

[[Page 51222]]

available to the individual a copy of any criminal record received from

the FBI.

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

individual described in paragraph (a) of this section, the air carrier

must advise the individual that the FBI criminal record discloses

information that would disqualify him/her from positions covered under

this rule and provide him/her with a copy of their FBI record if

requested.

(3) The air carrier must notify an individual that a final decision

has been made to forward or not forward a letter of certification for

unescorted access to the airport operator, or to grant or deny the

individual authority to perform screening functions listed under

paragraph (a)(3) of this section.

(h) Corrective action by the individual. The individual may

contact the local jurisdiction responsible for the information and the

FBI to complete or correct the information contained in his/her record

before the air carrier makes any decision to withhold his/her name from

a certification, or not grant authorization to perform screening

functions subject to the following conditions:

(1) Within 30 days after being advised that the criminal record

received from the FBI discloses disqualifying information, the

individual must notify the air carrier, in writing, of his/her intent

to correct any information believed to be inaccurate.

(2) Upon notification by an individual that the record has been

corrected, the air carrier must obtain a copy of the revised FBI record

prior to making a final determination.

(3) If no notification is received within 30 days, the air carrier

may make a final determination.

(i) Limits on dissemination of results. Criminal record information

provided by the FBI must be used solely for the purposes of this

section, and no person may disseminate the results of a criminal record

check to anyone other than:

(1) The individual to whom the record pertains or that individual's

authorized representative;

(2) Air carrier officials with a need to know; and

(3) Others designated by the Administrator.

(j) Employment status while awaiting criminal record checks.

Individuals who have submitted their fingerprints and are awaiting FBI

results may perform work details under the following conditions:

(1) Those seeking unescorted access to the SIDA must be escorted by

someone who has unescorted SIDA access privileges;

(2) Those applicants seeking positions covered under paragraphs

(a)(3) and (d)(4) of this section, may not exercise any independent

judgments regarding those functions.

(k) Recordkeeping. (1) The air carrier must physically maintain and

control Part 1 employment history investigation file until 180 days

after the termination of the individual's authority for unescorted

access or termination from positions covered under paragraph (a)(3) of

this section. Part 1 of the employment history investigation, completed

on screening personnel must be maintained at the airport where they

perform screening functions. Part 1 of the employment history

investigation file must consist of the following:

(i) The application;

(ii) The employment verification information obtained by the

employer;

(iii) the names of those from whom the employment verification

information was obtained;

(iv) The date and the method of how the contact was made; and

(v) Any other information as required by the Administrator.

(2) The air carrier must physically maintain, control and when

appropriate destroy Part 2, the criminal record file, for each

individual for whom a fingerprint comparison has been made. Part 2 must

be maintained for 180 days after the termination of the individual's

authority for unescorted access or after the individual ceases to

perform screening functions. Only direct air carrier employees may

carry out Part 2 responsibilities. Part 2 must consist of the

following:

(i) The results of the record check; or

(ii) Certification from the air carrier that the check was

completed and did not uncover a disqualifying conviction.

(3) The files required by this paragraph must be maintained in a

manner that is acceptable to the Administrator and in a manner that

protects the confidentiality of the individual.

(l) Continuing responsibilities. (1) Any individual authorized to

have unescorted access privilege to the SIDA or who performs functions

covered under paragraph (a)(3) of this section, who is subsequently

convicted of any of the crimes listed in paragraph (b)(2) of this

section must, within 24 hours, report the conviction to the air carrier

and surrender the SIDA access medium or any employment related

identification medium to the issuer.

(2) If information becomes available to the air carrier indicating

that an individual has a possible conviction for one of the

disqualifying crimes in paragraph (b)(2) of this section, the air

carrier must determine the status of the conviction and, if the

conviction is confirmed:

(i) Immediately revoke access authorization for unescorted access

to the SIDA; or

(ii) Immediately remove the individual from screening functions

covered under paragraph (a)(3) of this section.

(m) Air carrier responsibility. The air carrier must:

(1) Designate an individual(s), in the security program, to be

responsible for maintaining and controlling the employment history

investigation for those whom the air carrier has made a certification

to an airport operator under Sec. 107.31(n)(1) of this chapter and for

destroying the criminal record files when their maintenance is no

longer required by paragraph (k)(2) of this section.

(2) Designate individual(s), in the security program, to maintain

and control Part 1 of the employment history investigations of

screeners whose files must be maintained at the location or station

where the screener is performing his or her duties.

(3) Designate individual(s), in the security program, to serve as

the contact to receive notification from an individual applying for

either unescorted access or those seeking to perform screening

functions of his or her intent to seek correction of his or her

criminal record with the FBI.

(4) Designate an individual(s), in the security program, to

maintain and control Part 2 of the employment history investigation

file for all employees, contractors, or others who undergo a

fingerprint comparison at the request of the air carrier.

(5) Audit the employment history investigations performed in

accordance with this section. The audit process must be set forth in

the air carrier approved security program.

Issued in Washington, DC on September 16, 1998.

Jane F. Garvey,

Administrator.

[FR Doc. 98-25210 Filed 9-23-98; 8:45 am]

BILLING CODE 4910-13-M