Criminal History Records Checks

 [Federal Register: December 6, 2001 (Volume 66, Number 235)]
[Rules and Regulations]
[Page 63473-63486]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06de01-14]


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Part V





Department of Transportation





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Federal Aviation Administration



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14 CFR Parts 107 and 108



Criminal History Records Checks; Final Rule


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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Parts 107 and 108

[Docket No. FAA-2001-10999; Amdt. Nos. 107-14 and 108-19]
RIN 2120-AH53

 
Criminal History Records Checks

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule; request for comments.

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SUMMARY: This rule requires each airport operator and aircraft operator 
that has adopted a security program under part 107 or part 108, 
respectively, to conduct fingerprint-based criminal history record 
checks (CHRC's) for individuals if they have not already undergone 
CHRC's. The rule applies to those who either have, or apply for: 
Unescorted access authority to the Security Identification Display Area 
(SIDA) of an airport; authority to authorize others to have unescorted 
access; and screening functions. The rule is needed because the FAA has 
determined that the current employment investigation method is not 
adequate. The rule will ensure that individuals in these positions do 
not have disqualifying criminal offenses.

DATES: This rule is effective December 6, 2001. Submit comments by 
January 7, 2002.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW, 
Washington, DC 20590. You must identify the docket number FAA-2001-
10999 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that the 
FAA received your comments, include a self-addressed, stamped postcard. 
You may also submit comments through the Internet to http://
dms.dot.gov .
    You may review the public docket containing comments to these 
proposed regulations in person in the Dockets Office between 9:00 a.m. 
and 5:00 p.m., Monday through Friday, except Federal holidays. The 
Dockets Office is on the plaza level of the NASSIF Building at the 
Department of Transportation at the above address. Also, you may review 
public dockets on the Internet at http://dms.dot.gov .

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 Ave., SW, 
Washington, DC 20591; telephone 202-267-3413.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This final rule is being adopted without prior notice and prior 
public comment. The Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; Feb. 26, 1979), however 
provides that, to the maximum extent possible, operating 
administrations for the DOT should provide an opportunity for public 
comment on regulations issued without prior notice. Accordingly, 
interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments. Comments relating to 
environmental, energy, federalism, or international trade impacts that 
might result from this amendment also are invited. Comments must 
include the regulatory docket or amendment number and must be submitted 
in duplicate to the address above. All comments received, as well as a 
report summarizing each substantive public contact with FAA personnel 
on this rulemaking, will be filed in the public docket. The docket is 
available for public inspection before and after the comment closing 
date.
    The FAA will consider all comments received on or before the 
closing date for comments. Late-filed comments will be considered to 
the extent practicable. This final rule may be amended in light of the 
comments received.
    See ADDRESSES above for information on how to submit comments.

Availability of Final Rule

    You can get an electronic copy using the Internet by taking the 
following steps:
    (1) Go to search function of the Department of Transportation's 
electronic Docket Management System (DMS) Web page (http://dms.dot.gov/
search ).
    (2) On the search page type in the last four digits of the Docket 
number shown at the beginning of this notice. Click on ``search.''
    (3) On the next page, which contains the Docket summary information 
for the Docket you selected, click on the final rule.
    You can also get an electronic copy using the Internet through 
FAA's web page at http://www.faa.gov/avr/armhome.htm  or the Office of 
the Federal Register's web page at http://www.access.gpo.gov/su_docs/
aces/aces140html .
    You can also get a copy by submitting a request to the Federal 
Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence 
Avenue, SW, Washington, DC 20591, or by calling (202) 267-9680. Make 
sure to identify the amendment number or docket number of this final 
rule.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the FAA to comply with small entity requests for 
information advice about compliance with statutes and regulations 
within the FAA's jurisdiction. Therefore, any small entity that has a 
question regarding this document may contact its local FAA official. 
Internet users can find additional information on SBREFA on the FAA's 
web page at http:www.faa.gov/avr/arm/sbrefa.htm  and send electronic 
inquiries to the following Internet address: 9-AWA-SBREFA@faa.gov.

Abbreviations And Terms Used In This Document

AIR-21--Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century
ASIA 1990--Aviation Security Improvement Act of 1990
ASIA 2000--Airport Security Improvement Act of 2000
ATSA--Aviation and Transportation Security Act
CHRC--Criminal history records check
Reauthorization Act--Federal Aviation Reauthorization Act of 1996
SIDA--Security Identification Display Area

Background

    In the wake of the September 11, 2001, terrorist attacks against 
four U.S. commercial aircraft resulting in the tragic loss of human 
life at the World Trade Center, the Pentagon, and southwest 
Pennsylvania, the potential for additional terrorist attacks exists. 
Those responsible for the attacks are believed to be affiliated with an 
organization possessing a near-global terrorist network. The leaders of 
the groups constituting this organization have publicly stated they 
will attack the United States for incarcerating their members and are 
vehemently opposed to U.S. foreign policy and presence in the Middle 
East. They retain a capability and willingness to conduct airline 
bombings, hijackings, and suicide attacks against U.S. targets. These 
attacks also indicate that the terrorists are willing to use aircraft 
as weapons to inflict significant damage on persons and property in the 
United States. Given the resources and reach of the organization, it is 
likely that it has sought or will seek to place members in

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positions at airports to facilitate future attacks, or that it will 
attempt to co-opt individuals already in such positions. It should be 
underscored that, although other potential threats to U.S. civil 
aviation may be overshadowed at present, they have not disappeared. The 
uncertain course of the Middle East peace process involving Israel and 
the Palestinians, negative reactions to the U.S.-led military campaign 
in Afghanistan, and Iraqi opportunism in response to continued United 
Nations sanctions are among the developments that could give rise to 
attacks by groups or individuals not linked to the September 11 
atrocities.
    Since 1996, the FAA has required airport operators and aircraft 
operators to conduct checks on certain individuals to prevent 
individuals from working in those positions if they have a history of 
certain criminal convictions. See 14 CFR 107.31 and 108.33 (1997). Most 
of these checks include a 10-year employment investigation. If the 
employment investigation reveals one of four triggers listed in the 
rules, such as a 12-month gap in employment that is not satisfactorily 
explained, the investigation must include a Federal Bureau of 
Investigation (FBI) criminal history records check (CHRC) that is based 
on fingerprints of the individual. If the employment investigation or 
CHRC reveals a conviction in the 10 years before the investigation for 
one or more of the crimes listed in the regulations, the individual may 
not serve in the specified positions.
    As discussed below, the Administrator has determined that the 
current employment investigation method is not adequate. This rule 
requires that all employees in the specified positions undergo a CHRC 
based on their fingerprints.
    Title 14 of the Code of Federal Regulations (CFR) part 107 
prescribes security requirements for airport operators that must adopt 
and carry out an FAA-approved security program. The airport operators' 
responsibilities include the security of the Security Identification 
Display Area (SIDA). The SIDA is an area of an airport in which 
individuals who have unescorted access authority must display approved 
identification media (ID). It includes the areas near the terminal 
where aircraft taxi, and other areas as necessary for security. See 14 
CFR 107.3. The approved ID usually is issued by the airport operator, 
but in some cases is issued by the aircraft operator. In this preamble, 
the term ``airport operator'' refers to airport operators that hold 
security programs under part 107.
    Title 14 CFR part 108 prescribes security rules for U.S. aircraft 
operators that must adopt and carry out an FAA-approved security 
program. Aircraft operators are responsible for screening passengers 
and property that are carried on their aircraft. They also have 
responsibilities for the security of the SIDA. As used in this 
document, the term ``aircraft operator'' refers to U.S. aircraft 
operators conducting operations under security programs under part 108.

History

    Section 105 of the Aviation Security Improvement Act of 1990 (ASIA 
1990), Pub. L. 101-604, added a new provision that is now codified at 
49 U.S.C. 44936. It directed the FAA to ``issue regulations to require 
individuals employed in, and individuals applying for, [certain 
positions]
to be subjected to such employment investigations, including 
criminal history records check, as the Administrator determines 
necessary to ensure air transportation security.'' The positions 
covered were those in which the individual has unescorted access 
authority to aircraft operator or foreign air carrier aircraft, or to 
secured areas of airports serving aircraft operators or foreign air 
carriers.
    The FAA issued rules to carry out ASIA 1990. See 60 FR 51854 
(October 3, 1995). The rules, Secs. 107.31 and 108.33 (1997), require 
each airport operator and aircraft operator to conduct a 10-year 
employment history investigation for each individual applying for 
certain positions on or after the effective date, January 31, 1996. 
These employment checks must be performed for individuals who are 
granted unescorted access authority to a SIDA and individuals who 
authorize others to have unescorted access authority (together referred 
to in this preamble as individuals with ``unescorted access 
authority''). If the employment investigation reveals one of four 
conditions (triggers) listed in the rules the investigation must 
include a CHRC. The rule lists crimes that disqualify the individual 
from a position with unescorted access authority if the conviction 
occurred during the 10 years ending on the date of the investigation. 
Individuals who had unescorted access authority before the effective 
date were not subject to the rule. In the preamble to the rule the FAA 
stated that it would continue to evaluate the civil aviation security 
system to determine if further changes were warranted.
    Effective November 14, 2001, Sec. 107.31 was renumbered as 
Sec. 107.209, and Sec. 108.33 was renumbered as Sec. 108.229, in 
connection with comprehensive revisions of those parts, Amendments 107-
13 and 108-18. See 66 FR 37274 and 37330 (July 17, 2001).
    Section 304 of the Federal Aviation Reauthorization Act of 1996, 
Pub. L. 104-264, directs the FAA to expand the checks to individuals 
who screen passengers and property that will be carried in an aircraft 
cabin in air transportation or intrastate air transportation and to 
supervisors of individuals with authority to perform screening 
functions (together referred to in this preamble as ``individuals with 
authority to perform screening functions''). The act specifically 
requires that an employment investigation be performed for each 
individual hired to be a screener, and that a CHRC be done where the 
employment investigation reveals one of the four triggers.
    The FAA amended Sec. 108.33 to carry out the Reauthorization Act. 
See 63 FR 18076 (September 24, 1998). The amendment requires each 
aircraft operator to conduct a 10-year employment history investigation 
for individuals applying for positions as individuals with authority to 
perform screening functions on or after the effective date, November 
23, 1998. It applies the same scheme as that for individuals with 
unescorted access authority, that is, a 10-year employment history 
investigation, with a CHRC if one of the four triggers exists.
    Section 508 of the Wendell H. Ford Aviation Investment and Reform 
Act for the 21st Century (AIR-21), Pub. L. 106-181, gave the 
Administrator additional authority as to checks on individuals with 
authority to perform screening functions. In addition to the four 
triggers that provide a basis for a CHRC, it provided that a CHRC shall 
be done in any case in which ``the Administrator decides it is 
necessary to ensure air transportation security with respect to 
passenger, baggage, or property screening at airports.'' See 49 U.S.C. 
44936(a)(1)(C)(v).
    Section 2 of the Airport Security Improvement Act of 2000 (ASIA 
2000), Pub. L. 106-528, expands the use of CHRC's. It requires that, as 
of the effective dates, each individual applying for a position with 
unescorted access authority, or applying for a position as a screener, 
must undergo a CHRC. This is sometimes is referred to as ``100% 
fingerprinting of applicants.'' The effective date is December 23, 
2000, for individuals at airports defined as a Category X airport by 
the FAA. The effective date is November 23, 2003, for individuals at 
other airports. These requirements are self-executing. That means that 
the FAA did not need to

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issue a rule to make 100% fingerprinting of applicants effective on 
December 23, 2000, at Category X airports, and does not need to issue a 
rule to make 100% fingerprinting of applicants effective on November 
23, 2003, at non-Category X airports.
    ASIA 2000 also added crimes that disqualify an individual from a 
position with unescorted access authority or as a screener. This 
provision is self-executing and became effective on December 23, 2000, 
for individuals at all airports.
    In sum, there are some individuals who have had neither an 
employment investigation nor a CHRC, some individuals who have had 
employment investigations only, and some individuals who have had 
CHRC's, as follows:
    Individuals with unescorted access authority--
     At all airports, individuals who were in positions before 
January 31, 1996, did not undergo an employment investigation or a 
CHRC.
     At Category X airports, individuals applying for positions 
on or after January 31, 1996, and before December 23, 2000, underwent 
an employment investigation, and only underwent a CHRC if one of the 
four triggers existed.
     At Category X airports, all individuals applying for 
positions on or after December 23, 2000, through the present, undergo a 
CHRC.
     At other airports, individuals applying for positions on 
or after January 31, 1996, through the present, undergo an employment 
investigation, and a CHRC only if one of the four triggers exists.
    Individuals with authority to perform screening functions--
     At all airports, individuals who were in positions before 
November 23, 1998, did not undergo an employment investigation or a 
CHRC.
     At Category X airports, individuals applying for positions 
on or after November 23, 1998, and before December 23, 2000, underwent 
an employment investigation, and only underwent a CHRC if one of the 
four triggers existed.
     At Category X airports, all individuals applying for 
positions on or after December 23, 2000, through the present, undergo a 
CHRC.
     At other airports, individuals applying for positions on 
or after January 31, 1996, through the present, undergo an employment 
investigation, and a CHRC only if one of the four triggers exists.
    While the FAA has not before required CHRC's for all covered 
individuals, the statute provides authority to do so. Further, section 
138 of the Aviation Transportation Security Act (ATSA) provides that a 
new background check, including a criminal history record check, shall 
be required for individuals with unescorted access authority and 
individuals with authority to perform screening functions. This 
rulemaking accomplishes that requirement.
    There may be some individuals who now are in the covered positions 
who will be disqualified under these new checks. For instance, there 
may be individuals who underwent an employment history investigation 
only before December 23, 2000, and did not have a history of a crime 
that was disqualifying at the time. If that individual has a 
disqualifying criminal offense for one of the crimes added in ASIA 
2000, he or she will be disqualified. The legislative history for ASIA 
2000 recognizes that this provision ``may cause a few individuals to be 
removed from their jobs or prevent others from being hired. However, 
the number of people affected (convicted felons) will be few, and such 
actions will be taken to increase air travel security.'' S. Rep. No. 
106-388, 106th Cong., 2nd Sess. 3 (2000), reprinted in 2000 
U.S.C.C.A.N. 2252, 2254.
    Note that individuals subject to Secs. 107.209 and 108.229 have 
been required to report if they were convicted of a disqualifying crime 
after the initial investigation. See Secs. 107.31 (l) and 108.33 (h) of 
the 1996 rule, and Secs. 107.31 (l)(1) and 108.33 (l)(1) of the 1998 
rule. The CHRC's conducted under this rule may reveal some individuals 
who did not report convictions that occurred after their original 
investigation. These individuals will no longer be able to have 
unescorted access authority or to perform screening functions.
    ATSA also requires that additional background checks be done on 
both current employees and applicants for covered positions to the 
extent practicable. The additional checks include such things as a 
review of records of other governmental and international agencies. 
This rulemaking, which was written before ATSA was enacted, does not 
cover the additional background checks. They will be developed and 
adopted in the future.

Inadequacy of the Current Rules

    In the past year the FAA has conducted nationwide assessments of 
aircraft operator and airport operator compliance with the regulatory 
requirements for employment history investigations. While the FAA has 
found numerous properly completed employment history investigations, it 
has also discovered serious problems with the use of employment history 
investigations as a means for determining when a CHRC must be 
accomplished.
    Under current regulations, the applicant provides a 10-year 
employment history. The airport operator, aircraft operator, or 
designee verifies the most recent 5 years of that history, for example, 
by calling prior employers to verify employment. An airport operator or 
aircraft operator may only request a CHRC if one of four triggers 
exists, such as an unexplained gap of 12 months or more in the 10-year 
employment history. The determination of whether a trigger exists 
depends almost entirely on information provided by the applicant. This 
process has proven to be insufficiently reliable and subject to abuse.
    In its review of hundreds of employment history investigations, the 
FAA has found many instances where gaps in employment greater than 12 
months were accounted for by a friend or family member, or by third 
party firm in the United States that claimed to know the whereabouts of 
an applicant while he or she was living in a foreign country. While the 
FAA regards such information as unsatisfactory to account for a period 
of unemployment, screening companies, on behalf of aircraft operators, 
routinely accept this information as sufficient under the regulations. 
Accordingly, applications that the FAA considers to reveal a trigger, 
and therefore require a CHRC, have not been regarded as such by an 
aircraft operator.
    Furthermore the FAA has found several cases where it appears that 
an applicant has provided false information of employment and another 
person to provide a false reference for time periods greater than 12 
months. In these cases, the screening company may be duped when 
verifying the information, because the false reference is a co-
conspirator in the applicant's falsification of his or her employment 
history. In other cases, the screening company may have been unable to 
contact the reference, therefore may have been unable to verify prior 
employment, but nonetheless did not request a CHRC. In either instance, 
the applicant has successfully avoided undergoing a CHRC.
    Even when an employment history is complete and an investigation of 
that history is properly conducted, the FAA is concerned that the four 
triggers do not always identify applicants with disqualifying criminal 
histories. For instance, during an October 2001 audit,

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the FAA and the Department of Transportation found that some current 
employees had disqualifying criminal convictions. For at least one such 
employee, the employment history investigation appears to have been 
properly completed, but it revealed no triggers that would have 
required a CHRC.
    Accordingly, the Administrator has determined that the employment 
history and verification procedure in the current rule is inadequate to 
determine whether the individual has a history of a disqualifying 
crime.
    In addition to the changes in this rulemaking, the FAA continues to 
review pertinent information and determine whether additional 
requirements are needed to enhance the background checks for 
individuals in various positions that affect security.

Section-by-Section Analysis

    These amendments reflect the new requirements in ASIA 2000, which 
provides additional disqualifying crimes and 100% fingerprinting of 
applicants at Category X airports. These amendments also require 100% 
fingerprinting of all applicants at Category I through IV airports, and 
100% fingerprinting of all current employees with unescorted access 
authority and all current employees with authority to perform screening 
functions who have not been subject to a CHRC under current rules.
    In this preamble, references to ``current'' rules mean 
Secs. 107.209 and 108.229 as they became effective on November 14, 
2001, 66 FR 37274 and 37330 (July 17, 2001). References to ``new'' 
rules mean amendments made in this rulemaking.

Section 107.209  Fingerprint-Based Criminal History Records Checks 
(CHRC)

    This section amends Sec. 107.209, Employment history, verification, 
and criminal history records checks. It applies to airport operators 
and others.
    Paragraph (a), Scope, sets out the scope of the section. It is 
essentially unchanged, except that the section now covers individuals 
not only applying for unescorted access authority, but also those who 
currently have unescorted access authority. This section does not apply 
to individuals with authority to perform screening functions because 
airport operators are not responsible for screening.
    Paragraph (b), Individuals seeking unescorted access authority, 
states the basic requirement for CHRC's for individuals seeking 
unescorted access authority. This paragraph provides that the airport 
operator must ensure that no individual is granted unescorted access 
authority unless the individual has undergone a fingerprint-based CHRC 
that does not disclose that he or she has a disqualifying criminal 
offense. There are exceptions to this paragraph in paragraph (m).
    Paragraph (c), Individuals who have not had a CHRC, states the 
requirements for individuals who currently have unescorted access 
authority. The airport operator must ensure that after December 6, 
2002, no individual retains unescorted access authority unless the 
airport operator has obtained and submitted a fingerprint under part 
107. This means that if the individual who currently has unescorted 
access authority was subject to a fingerprint-based CHRC under part 107 
in the past, the individual does not need to undergo another CHRC. If 
the individual underwent only an employment history verification under 
part 107, or no check, the individual must now be fingerprinted and 
undergo a CHRC. There are exceptions to this paragraph in paragraph 
(m).
    Paragraph (c)(2) provides that when a CHRC discloses a 
disqualifying criminal offense for which the conviction or finding of 
not guilty by reason of insanity was in the 10 years before December 6, 
2001, the airport operator must immediately suspend that individual's 
authority. This is similar to current Sec. 107.209 (l)(2), which in 
part provides that if the airport operator confirms that the individual 
has a disqualifying conviction the airport operator must withdraw any 
authority granted to that individual. An individual who believes that 
the CHRC is incorrect may seek to correct the record in accordance with 
paragraph (h).
    Paragraph (d), Disqualifying criminal offenses, states what a 
disqualifying criminal offense is under the rule. A criminal offense is 
disqualifying if it meets several conditions: The individual must have 
been either convicted or found not guilty by reason of insanity; the 
crime must be listed in this section; and the conviction or finding 
must have occurred either during the 10 years before the date of the 
CHRC or while the individual has unescorted access authority. The 
disqualifying crimes are the crimes listed in current Sec. 107.209 
(b)(2), plus the crimes added in ASIA 2000. Further, 18 U.S.C. 37, 
Violence at international airports, is added.
    The statute provides that the Administrator may make any other 
felony a disqualifying crime if she determines that the crime indicates 
a propensity for placing contraband aboard an aircraft in return for 
money. See 49 U.S.C. 44936(b)(1)(B)(xiv)(IX). If the Administrator 
determines that an additional crime should be disqualifying, these 
rules will be amended to so provide.
    Paragraph (e), Fingerprint application and processing, describes 
how the airport operator obtains and processes the fingerprint. 
Paragraph (e)(1) describes the application. The application must 
contain only the items in this paragraph, for reasons discussed for 
paragraph (e)(1)(iii). The application must have the disqualifying 
criminal offenses described in paragraph (d). This will give the 
individual the opportunity to determine whether he or she is not 
qualified and to stop the application process at that point. The 
application must have a statement that the individual signing the form 
does not have a disqualifying criminal offense. The application must 
contain a statement informing the individual that he or she must advise 
the airport operator within 24 hours if he or she is convicted of any 
disqualifying criminal offense that occurs while the individual has 
unescorted access authority. This is a notification to the individual 
of his or her responsibility under paragraph (l)(2).
    Under paragraph (e)(1)(iii) the application also must have a 
statement that the individual signing the application may be subject to 
prosecution under title 18 of the United States Code if he or she 
knowingly and willfully provides false information on the application. 
This will inform the individual of the serious nature of the 
application and the need to be truthful. This statement applies to 
information that the government determines is material for governmental 
purposes. Other information that the airport operator may want to have 
to make employment decisions, such as the individual's wages and duties 
in prior employment, is not material to the government for this purpose 
and cannot be subject to the warning regarding title 18 of the United 
States Code. For this reason the application may contain only the 
information in this paragraph.
    The application must have a line for the printed name of the 
individual. Finally, the application must a line for the individual's 
signature and date of signature.
    Paragraph (e)(2) provides that the individual must complete and 
sign the application prior to submitting his or her fingerprints.
    Before the fingerprints are taken the airport operator must verify 
the identity of the individual with two forms of identification (ID). 
At least one ID must

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have been issued by a government authority and at least one must 
include a photograph of the individual. One ID may satisfy the two 
latter requirements, together with one other ID. For instance, an 
individual may present one state driver's license with a photograph 
(which is both a government ID and an ID with a photograph) plus one 
other ID that is not issued by the government and does not have a 
photograph. This is a small expansion of the current rule. Current 
Sec. 107.209 (e)(3) requires two forms of ID, at least one of which has 
a photo. The requirement for a government ID means that at least one of 
the ID's is from an official source.
    Paragraph (e)(4) requires the airport operator to advise the 
individual that a copy of the criminal record received from the FBI 
will be provided to the individual if requested in writing. This is in 
current Sec. 107.209 (g)(1). This paragraph also requires the airport 
operator to advise the individual that the Airport Security Coordinator 
is the point of contact for questions, as in current Sec. 107.209 (d).
    Under paragraph (e)(5) the airport operator must collect, control, 
and process one set of legible and classifiable fingerprints under 
direct observation by the airport operator or a law enforcement 
officer. These are essentially in current Sec. 107.209 (e)(1) and 
(e)(2).
    Paragraph (e)(6) makes clear that fingerprints may be either 
obtained and processed electronically, or on fingerprint cards approved 
by the FBI and distributed by the FAA for that purpose. Current 
Sec. 107.209 (e)(1) provides only for obtaining fingerprints on cards. 
However, there now are electronic means of collecting fingerprints in 
use at a number of airports.
    Paragraph (e)(7) provides that the fingerprints must be submitted 
in a manner specified by the Administrator, similar to current 
Sec. 107.209 (e)(4).
    Under paragraph (f), Fingerprint fees, the airport operator must 
pay for all fingerprints in a form and manner approved by the FAA. 
Current Sec. 107.209 (e)(5) provides only for payment by corporate 
check, cash, or money order, due upon application. However, electronic 
fund transfers now are accepted, and credit cards and escrow accounts 
will be accepted in the future. This paragraph ensures that there is 
flexibility to develop new payment procedures for the efficiency of 
both the industry and the government. The rule specifically provides 
that individual personal checks are not acceptable. The FAA simply 
cannot handle checks from each individual who submits fingerprints.
    Paragraph (g), Determination of arrest status, states that the 
airport operator must investigate arrests recorded in the CHRC for 
individuals seeking unescorted access authority and for individuals 
with unescorted access authority. This is essentially the same as 
current Sec. 107.209 (f), except that this paragraph also expressly 
states that--
     The airport operator must determine that the arrest of an 
individual seeking unescorted access authority did not result in a 
disqualifying offense before granting the individual that authority.
     When a CHRC on an individual with unescorted access 
authority discloses an arrest for a disqualifying criminal offense 
without indicating a disposition, the airport operator must suspend the 
individual's authority within 45 days of obtaining the CHRC, unless the 
arrest did not result in a disqualifying criminal offense. This rule 
does not require immediate suspension of the individual's unescorted 
access authority. The CHRC may not be complete. For instance, the 
charges might have been withdrawn or there could have been a conviction 
for a crime that is not disqualifying. The 45-day period provides an 
opportunity to obtain current information on disposition of the arrest.
     The airport operator only makes this determination for 
individuals for whom it is issuing or has issued unescorted access 
authority, and who are not covered by a certification from the aircraft 
operator under paragraph (n). The airport operator may not make this 
determination for individuals described in Sec. 108.229 (a).
    Paragraph (h), Correction of FBI records and notification of 
disqualification, states the airport operator's duty to advise the 
individual about a disqualifying criminal offense in the CHRC received 
from the FBI, provide a copy of the record, and notify the individual 
of a final decision. This paragraph is essentially the same as current 
Sec. 107.209 (g)(2) and (3), except that the new section also covers 
individuals who already have unescorted access authority, as well as 
those seeking authority.
    Paragraph (i), Corrective action by the individual, describes how 
the individual may correct his or her record. Paragraph (i)(1) 
describes the action the individual may take to correct an inaccurate 
CHRC. It is similar to current Sec. 107.209 (h) with some additions. 
The current rule provides that the FBI record must be revised, but this 
may take undue time. New paragraph (i)(1)(i) permits the airport 
operator to accept a certified true copy of the record from the 
appropriate court. For example, if the FBI record indicates that the 
individual was convicted, but does not also show that the conviction 
was reversed on appeal, the individual may obtain a certified true copy 
of the court record of that ruling. Certified true copies of court 
records may be obtained from the clerk of the court. This paragraph 
makes clear that the airport operator may either obtain the copy of the 
record itself, or accept a copy from the individual.
    Paragraph (i)(2) provides a similar procedure for individuals who 
have unescorted access authority on December 6, 2001. If the individual 
corrects the information on the CHRC or provides a certified true copy 
of the information from the appropriate court, the individual's 
authority may be reinstated.
    Paragraph (j), Limitations on dissemination of results, describes 
the limitations on disseminating the CHRC results. It is largely the 
same as current Sec. 107.209 (i). This paragraph now expressly states 
that the CHRC may only be used to determine the appropriateness of 
granting unescorted access authority under this section. It also 
expressly states that the CHRC may be given to other airport operators 
who are determining whether to grant unescorted access to the 
individual under this part. It also states the information may be given 
to aircraft operators who are determining whether to grant unescorted 
access to the individual or authorize the individual to perform 
screening functions under part 108. If an individual has a need for 
unescorted access at two airports, for instance, one airport may 
conduct the CHRC and share the results with the second airport, so the 
individual only is fingerprinted once.
    Paragraph (k), Recordkeeping, states the airport operator's duties 
to maintain records, and is essentially the same as current 
Sec. 107.209 (k).
    Paragraph (l), Continuing responsibilities, describes the 
continuing responsibilities of individuals, airport operators, and 
airport users regarding disqualifying criminal offenses occurring after 
the initial investigation. Paragraph (l)(1) addresses all individuals 
who currently have unescorted access authority. It requires them to 
report any disqualifying criminal offenses that have occurred in the 10 
years before December 6, 2001. This applies to those who never 
underwent a background check under part 107 because they had unescorted 
access authority before the

[[Page 63479]]

1996 rule, to those who underwent an employment verification only under 
the 1996 rule, and to those who underwent a CHRC under the 1996 rule. 
This ensures that individuals who currently hold unescorted access 
authority are required to report offenses that are now listed in (d) 
and that disqualify them from continuing to serve in such a position.
    Paragraphs (l)(2) and (l)(3) essentially repeat the current 
provisions of Sec. 107.209 (l)(1) and (l)(2).
    Paragraph (m), Exceptions, states the exceptions to this rule. 
Government employees, crewmembers of foreign air carriers and 
individuals who were previously employed in a position requiring a CHRC 
need not be fingerprinted under this rule, as described in this 
section. These exceptions are the same as in current Sec. 107.209 (m). 
There are two changes to current paragraph (m). First, new paragraph 
(m) does not contain the exemption for certain individuals who were 
given access authority to U.S. Customs' secured areas before November 
23, 1998. Section 138 of ATSA removes the exemption for the individuals 
with access to U.S. Customs' secured areas. Second, new paragraph (m) 
permits individuals who have unescorted access authority or authority 
to perform screening functions and who already have been subject to an 
FAA fingerprint-based CHRC to move to another employer or airport 
without being subject to another CHRC, provided that they have been 
continuously employed.
    Paragraph (n), Certification by aircraft operators, states when the 
airport operator may accept a certification from an aircraft operator. 
Paragraph (n) permits the airport operator to accept a certification 
from an aircraft operator that it has complied with the requirements of 
the aircraft operator's rule, similar to current Sec. 107.209 (n). This 
paragraph clarifies that if the airport operator accepts a 
certification from the aircraft operator, the airport operator may not 
also require a copy of the CHRC. If the airport operator is accepting a 
certification, it does not have a need for the CHRC.
    Paragraph (o), Airport operator responsibilities, describes airport 
operator responsibilities, corresponding to current Sec. 107.209 (o).
    Paragraph (p), Airport user responsibility, states the airport 
user's responsibilities, similar to current Sec. 107.209 (p).

Section 108.229  Fingerprint-Based Criminal History Records Checks 
(CHRC)

    This section amends Sec. 108.229, Employment history, verification, 
and criminal history records checks. It applies to aircraft operators 
and others.
    Paragraph (a), Scope, sets out the scope of this section. Paragraph 
(a)(1) covers individuals applying for unescorted access or to have 
authority to perform screening functions on and after the December 6, 
2001. Paragraph (a)(1)(i) covers each employee or contract employee 
covered under a certification made to an airport operator, pursuant to 
new Sec. 107.209 (n), on and after December 6, 2001. These are 
employees who receive their unescorted access authority from the 
airport operator, based on the CHRC conducted by the aircraft operator. 
Paragraph (a)(ii) covers each individual, on and after December 6, 
2001, issued aircraft operator identification media that one or more 
airports accepts as airport-approved media for unescorted access within 
a SIDA. Finally, paragraph (a)(1)(iii) covers each individual, on and 
after December 6, 2001, granted authority to perform certain screening 
functions within the United States. These functions are screening 
passengers or property that will be carried in a cabin of an aircraft, 
and serving as an immediate supervisor (checkpoint security supervisor 
(CSS)), or the next supervisory level (shift or site supervisor), to 
those individuals (referred to as individuals authorized to perform 
screening functions).
    Paragraph (a)(2) covers individuals who were employed before the 
December 6, 2001. Paragraph (a)(2)(i) covers each employee or contract 
employee covered under a certification made to an airport operator 
pursuant to Sec. 107.31 (n) as it existed before November 14, 2001, or 
pursuant to Sec. 107.209 (n) before December 6, 2001. Paragraph 
(a)(2)(ii) covers individuals with unescorted access authority based on 
an aircraft operator identification media, and paragraph (a)(2)(iii) 
covers individuals authorized to perform screening functions.
    Paragraph (b), Individuals seeking unescorted access authority or 
authority to perform screening functions, states the basic requirement 
for CHRC's for individuals identified in paragraph (a)(1). This 
paragraph provides that the aircraft operator must ensure that each 
individual has undergone a fingerprint-based CHRC that does not 
disclose that he or she has a disqualifying criminal offense before 
making a certification to an airport operator regarding that 
individual, issuing an aircraft operator identification media to that 
individual, or authorizing that individual to perform a screening 
function.
    Paragraph (c), Individuals who have not had a CHRC, states the 
requirements for individuals who currently have unescorted access 
authority or who perform screening functions. Under paragraph (c), such 
individuals may not retain their unescorted access authority, and may 
not perform screening functions, after one year after the December 6, 
2001, unless a CHRC has been conducted. Paragraph (c)(2) is essentially 
the same as current Sec. 107.209 (c)(2).
    Paragraph (d), Disqualifying criminal offenses, states what a 
disqualifying criminal offense is under the rule. It is essentially the 
same as new Sec. 107.209 (d), discussed above, and corresponds to 
current Sec. 108.229 (d).
    Paragraph (e), Fingerprint application and processing, describes 
how the aircraft operator obtains and processes the fingerprints. It is 
essentially the same as new Sec. 107.209 (f).
    Paragraph (f), Fingerprint fees, describes the fees for 
fingerprinting, essentially the same as new Sec. 107.209 (g). It 
corresponds to current Sec. 108.29 (e)(5).
    Paragraph (g), Determination of arrest status, requires the 
aircraft operator to investigate arrests recorded in the CHRC. It is 
essentially the same as new Sec. 107.209 (g), and corresponds to 
current Sec. 108.229 (f). The paragraph states that--
     When a CHRC on an individual described in paragraph (a)(1) 
discloses an arrest for a disqualifying criminal offense and does not 
indicate a disposition, an aircraft operator may not grant that 
individual unescorted access authority, either by making a 
certification to an airport operator or issuing identification media 
that is accepted by airport operators for unescorted access, or 
authority to perform screening functions.
     When a CHRC on an individual described in paragraph (a)(2) 
discloses an arrest for a disqualifying criminal offense and does not 
indicate a disposition, an aircraft operator must suspend the 
individual's unescorted access authority or authority to perform 
screening functions within 45 days after obtaining the CHRC unless the 
aircraft operator determines, after investigation, that the arrest did 
not result in a disqualifying criminal offense.
     An aircraft operator may only make this determination for 
individuals described in paragraph (a).
    Paragraph (h), Correction of FBI records and notification of

[[Page 63480]]

disqualification, states the aircraft operator's duty to advise the 
individual about a disqualifying criminal offense in the CHRC, provide 
a copy of the record, and notify the individual of a final decision. It 
is essentially the same as new Sec. 107.209 (h) and current 
Sec. 108.229 (g).
    Paragraph (i), Corrective action by the individual, describes the 
action the individual may take to correct an inaccurate CHRC. It is 
essentially the same as new Sec. 107.209 (i) and current 
Sec. 108.229(h).
    Paragraph (j), Limits on dissemination of results, describes the 
limitations on disseminating the CHRC results. It is essentially the 
same as new Sec. 107.209 (j) and current Sec. 108.229(i). Paragraph 
(j)(2) clarifies that an aircraft operator may not provide CHRC results 
to an airport operator if the aircraft operator is providing a 
certification under part 107. In such a case, the airport operator does 
not have a need to see the CHRC under these rules. This is consistent 
with new Sec. 107.209 (n).
    Paragraph (k), Recordkeeping, states the airport operator's duties 
to maintain records, and is essentially the same as new Sec. 107.209 
(k) and current Sec. 108.229 (k).
    Paragraph (l), Continuing responsibilities, states the continuing 
responsibilities of the aircraft operator, each person with unescorted 
access authority, and each person performing screening functions, 
corresponding to new Sec. 107.209 (l) and current Sec. 108.229 (l).
    Paragraph (m), Aircraft operator responsibility, states the 
aircraft operator responsibility corresponding to new Sec. 107.209 (o) 
and current Sec. 108.229 (m).

Compliance Dates

    This rule becomes effective on December 6, 2001. On that date each 
airport operator and each aircraft operator may begin submitting 
fingerprints to complete the CHRC's required under this rule.
    The compliance date for individuals seeking unescorted access 
authority, and for individuals seeking authority to perform screening 
functions, at non-Category X airports is December 6, 2001. On and after 
that date each individual seeking such authority must undergo a CHRC as 
provided in this rulemaking.
    Under Sec. 107.209 (c) and Sec. 108.229 (c) the compliance date for 
submitting fingerprints for individuals who now have unescorted access 
authority and individuals who now have authority to perform screening 
functions is one year after the December 6, 2001. By that date, each 
airport operator and each aircraft operator must have submitted 
fingerprints for all such individuals.
    The FAA considers it critical to promptly address the deficiencies 
in the current employment investigations described above. Based on 
discussions with the industry, the FAA believes that these dates can be 
met. Indeed, a number of airport operators agree that all covered 
individuals should be fingerprinted and are ready to undertake that 
task as soon as possible, and expect to complete it much sooner than 
one year.

Good Cause for Immediate Adoption

    This action is necessary to prevent a possible imminent hazard to 
aircraft and persons and property within the United States. Because the 
circumstances described herein warrant immediate action, the 
Administrator finds that notice and public comment under 5 U.S.C. 
553(b) are impracticable and contrary to the public interest. Further, 
the Administrator finds that good cause exists under 5 U.S.C. 553(d) 
for making this rule effective less than 30 days after publication in 
the Federal Register.

International Compatibility

    In keeping with U.S. obligations under the Convention on 
International Civil Aviation, it is FAA policy to comply with 
International Civil Aviation Organization (ICAO) Standards and 
Recommended Practices to the maximum extent practicable. The FAA 
determined that there are no ICAO Standards and Recommended Practices 
that correspond to this rule.

Paperwork Reduction Act

    This emergency rule contains information collection activities 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). In 
accordance with section 3507 (j)(1)(B) of that statute, the FAA 
requested the Office of Management and Budget to grant an immediate 
emergency clearance on the paperwork package that was submitted. As 
protection provided by the Paperwork Reduction Act, an agency may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. The collection of information was approved and assigned 
OMB Control Number 2120-0673. Following is a summary of the information 
collection activity.
    Need: This rule requires information to be collected on individuals 
who perform, or seek to perform, security-related functions at domestic 
airports. The rule covers individuals at all categories of airports who 
were not subject to a fingerprint-based CHRC before December 6, 2001. 
Under current FAA rules and statutes, fingerprint-based criminal 
history record checks are conducted on applicants at Category X 
airports for employment as screeners and for positions with access to 
secured areas of the airport. At non-Category X airports criminal 
history record checks are done only in limited circumstances, that is, 
when a verification of their prior employment reveals certain triggers, 
such as an unexplained gap in employment of 12 months. No individual 
with access to secured areas had a background check before 1996, and no 
screener had a background check before 1998. Only limited numbers of 
individuals hired since 1996 and 1998 respectively have been subjected 
criminal history checks. The new rules will require that all 
individuals with access to secured areas and all screeners be 
fingerprinted and a criminal history check conducted if it has not been 
done in the past. The rules are an essential part of the response to 
the current threat of terrorist activity.
    Description of Respondents: All new and existing personnel who have 
unescorted access authority to the security identification display area 
of an airport, individuals who authorize others to have unescorted 
access authority, individuals who screen passengers and property that 
will be carried in an aircraft cabin in air transportation or 
intrastate air transportation, and supervisors of screeners. The FAA 
estimates that there will be 1.06 million respondents during the first 
year.
    Estimated Burden: This rule will constitute a recordkeeping burden 
for certificate holders operating under parts 107 and 108. All 
personnel will need to be fingerprinted. In the first year of this 
rule, 1.06 million employees will need to be processed; in subsequent 
years, it will average about 275,000 employees. The total ten-year 
burden for the estimated 3.52 million employees is 1,234,711 hours at a 
cost of $27,833,525. The annual burden sums to 123,471.1 hours at a 
cost of $2,783,352.50.

Economic Analyses

    This rulemaking action is taken under an emergency situation within 
the meaning of Section 6(a)(3)(D) of Executive Order 12866, Regulatory 
Planning and Review. It also is considered an emergency regulation 
under Paragraph 11g of the Department of Transportation (DOT) 
Regulatory Policies and Procedures. In addition, it is a significant 
rule within the meaning of the Executive Order and DOT's policies and 
procedures. No regulatory

[[Page 63481]]

analysis or evaluation accompanies this rule. The FAA has not assessed 
of whether this rule will have a significant economic impact on a 
substantial number of small entities as defined in the Regulatory 
Flexibility Act of 1980. When no notice of proposed rulemaking has 
first been published, no such assessment is required for a final rule. 
The FAA recognizes that this rule will impose significant costs on 
airport operators and aircraft operators. The current security threat 
requires, however, that operators take all necessary measures to ensure 
the safety and security of their operations.

Executive Order 13132, Federalism

    The FAA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We determined that this action will 
not have a substantial direct effect on the States, or the relationship 
between the national Government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, we have determined that this final rule does not have 
federalism implications.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as Pub. 
L. 104-4 on March 22, 1995 is intended, among other things, to curb the 
practice of imposing unfunded Federal mandates on State, local, and 
tribal governments. Title II of the Act requires each Federal agency to 
prepare a written statement assessing the effects of any Federal 
mandate in a proposed or final agency rule that may result in a $100 
million or more expenditure (adjusted annually for inflation) in any 
one year by State, local, and tribal governments, in the aggregate, or 
by the private sector; such a mandate is deemed to be a ``significant 
regulatory action.''
    Based on the FAA's rough initial estimates the FAA does not believe 
that the rule will result in such a mandate. The requirements of Title 
II of the Unfunded Mandates Reform Act of 1995 do not apply when no 
notice of proposed rulemaking has first been published, however. 
Accordingly, the FAA has not prepared a statement under the Act.

Environmental Analysis

    FAA Order 1050.1D defines FAA actions that may be categorically 
excluded from preparation of a National Environmental Policy Act (NEPA) 
environmental impact statement. In accordance with FAA Order 1050.1D, 
appendix 4, paragraph 4(j) this rulemaking action qualifies for a 
categorical exclusion.

Energy Impact

    The energy impact of this rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA) Pub. L. 94-163, as 
amended (42 U.S.C. 6362) and FAA Order 1053.1. It has been determined 
that this rule is not a major regulatory action under the provisions of 
the EPCA.

List of Subjects

14 CFR Part 107

    Airports, Law enforcement officers, Reporting and recordkeeping 
requirements, Security measures.

14 CFR Part 108

    Air carriers, Aircraft, Airports, Law enforcement officers, 
Reporting and recordkeeping requirements, Security measures.

The Amendments

    For the reasons stated in the preamble, the Federal Aviation 
Administration amends 14 CFR chapter I as set forth below:

PART 107--AIRPORT SECURITY

    1. The authority citation for part 107 continues to read as 
follows:

    Authority: 49 U.S.C. 106(g), 5103, 40113, 40119, 44701-44702, 
44706, 44901-44905, 44907, 44913-44914, 44932, 44935-44936, 46105.


    2. Revise Sec. 107.209 to read as follows:


Sec. 107.209  Fingerprint-based criminal history records checks (CHRC).

    (a) Scope. The following persons are within the scope of this 
section--
    (1) Each airport operator and airport user.
    (2) Each individual currently having unescorted access to a SIDA, 
and each individual with authority to authorize others to have 
unescorted access to a SIDA (referred to as unescorted access 
authority).
    (3) Each individual seeking unescorted access authority.
    (4) Each airport user and aircraft operator making a certification 
to an airport operator pursuant to paragraph (n) of this section, or 
Sec. 107.31 (n) as it existed before November 14, 2001 (see 14 CFR 
parts 60 to 139 revised as of January 1, 2001). An airport user, for 
the purposes of this section only, is any person other than an aircraft 
operator subject to Sec. 108.229 of this chapter making a certification 
under this section.
    (b) Individuals seeking unescorted access authority. Except as 
provided in paragraph (m) of this section, each airport operator must 
ensure that no individual is granted unescorted access authority unless 
the individual has undergone a fingerprint-based CHRC that does not 
disclose that he or she has a disqualifying criminal offense, as 
described in paragraph (d) of this section.
    (c) Individuals who have not had a CHRC. (1) Except as provided in 
paragraph (m) of this section, each airport operator must ensure that 
after December 6, 2002, no individual retains unescorted access 
authority, unless the airport operator has obtained and submitted a 
fingerprint under this part.
    (2) When a CHRC discloses a disqualifying criminal offense for 
which the conviction or finding of not guilty by reason of insanity was 
on or after December 6, 1991, the airport operator must immediately 
suspend that individual's authority.
    (d) Disqualifying criminal offenses. An individual has a 
disqualifying criminal offense if the individual has been convicted, or 
found not guilty of by reason of insanity, of any of the disqualifying 
crimes listed in this paragraph in any jurisdiction during the 10 years 
before the date of the individual's application for unescorted access 
authority, or while the individual has unescorted access authority. The 
disqualifying criminal offenses are as follows--
    (1) Forgery of certificates, false marking of aircraft, and other 
aircraft registration violation; 49 U.S.C. 46306.
    (2) Interference with air navigation; 49 U.S.C. 46308.
    (3) Improper transportation of a hazardous material; 49 U.S.C. 
46312.
    (4) Aircraft piracy; 49 U.S.C. 46502.
    (5) Interference with flight crew members or flight attendants; 49 
U.S.C. 46504.
    (6) Commission of certain crimes aboard aircraft in flight; 49 
U.S.C. 46506.
    (7) Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 
46505.
    (8) Conveying false information and threats; 49 U.S.C. 46507.
    (9) Aircraft piracy outside the special aircraft jurisdiction of 
the United States; 49 U.S.C. 46502(b).
    (10) Lighting violations involving transporting controlled 
substances; 49 U.S.C. 46315.
    (11) 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.
    (12) Destruction of an aircraft or aircraft facility; 18 U.S.C. 32.
    (13) Murder.
    (14) Assault with intent to murder.

[[Page 63482]]

    (15) Espionage.
    (16) Sedition.
    (17) Kidnapping or hostage taking.
    (18) Treason.
    (19) Rape or aggravated sexual abuse.
    (20) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon.
    (21) Extortion.
    (22) Armed or felony unarmed robbery.
    (23) Distribution of, or intent to distribute, a controlled 
substance.
    (24) Felony arson.
    (25) Felony involving a threat.
    (26) Felony involving--
    (i) Willful destruction of property;
    (ii) Importation or manufacture of a controlled substance;
    (iii) Burglary;
    (iv) Theft;
    (v) Dishonesty, fraud, or misrepresentation;
    (vi) Possession or distribution of stolen property;
    (vii) Aggravated assault;
    (viii) Bribery; or
    (ix) Illegal possession of a controlled substance punishable by a 
maximum term of imprisonment of more than 1 year.
    (27) Violence at international airports; 18 U.S.C. 37.
    (28) Conspiracy or attempt to commit any of the criminal acts 
listed in this paragraph.
    (e) Fingerprint application and processing. (1) At the time of 
fingerprinting, the airport operator must provide the individual to be 
fingerprinted a fingerprint application that includes only the 
following--
    (i) The disqualifying criminal offenses described in paragraph (d) 
of this section.
    (ii) A statement that the individual signing the application does 
not have a disqualifying criminal offense.
    (iii) A statement informing the individual that Federal regulations 
under 14 CFR 107.209 (l) impose a continuing obligation to disclose to 
the airport operator within 24 hours if he or she is convicted of any 
disqualifying criminal offense that occurs while he or she has 
unescorted access authority.
    (iv) A statement reading, ``The information I have provided on this 
application is true, complete, and correct to the best of my knowledge 
and belief and is provided in good faith. I understand that a knowing 
and willful false statement on this application can be punished by fine 
or imprisonment or both. (See section 1001 of Title 18 United States 
Code.)''
    (v) A line for the printed name of the individual.
    (vi) A line for the individual's signature and date of signature.
    (2) Each individual must complete and sign the application prior to 
submitting his or her fingerprints.
    (3) The airport operator must verify the identity of the individual 
through two forms of identification prior to fingerprinting, and ensure 
that the printed name on the fingerprint application is legible. At 
least one of the two forms of identification must have been issued by a 
government authority, and at least one must include a photo.
    (4) The airport operator must advise the individual that:
    (i) A copy of the criminal record received from the FBI will be 
provided to the individual, if requested by the individual in writing; 
and
    (ii) The ASC is the individual's point of contact if he or she has 
questions about the results of the CHRC.
    (5) The airport operator must collect, control, and process one set 
of legible and classifiable fingerprints under direct observation of 
the airport operator or a law enforcement officer.
    (6) Fingerprints may be obtained and processed electronically, or 
recorded on fingerprint cards approved by the FBI and distributed by 
the FAA for that purpose.
    (7) The fingerprint submission must be forwarded to the FAA in the 
manner specified by the Administrator.
    (f) Fingerprinting fees. Airport operators must pay for all 
fingerprints in a form and manner approved by the FAA. The payment must 
be made at the designated rate (available from the local FAA security 
office) for each set of fingerprints submitted. Information about 
payment options is available though the designated FAA headquarters 
point of contact. Individual personal checks are not acceptable.
    (g) Determination of arrest status. (1) When a CHRC on an 
individual seeking unescorted access authority discloses an arrest for 
any disqualifying criminal offense listed in paragraph (d) of this 
section without indicating a disposition, the airport operator must 
determine, after investigation, that the arrest did not result in a 
disqualifying offense before granting that authority.
    (2) When a CHRC on an individual with unescorted access authority 
discloses an arrest for any disqualifying criminal offense without 
indicating a disposition, the airport operator must suspend the 
individual's unescorted access authority not later than 45 days after 
obtaining the CHRC unless the airport operator determines, after 
investigation, that the arrest did not result in a disqualifying 
criminal offense.
    (3) The airport operator may only make the determinations required 
in paragraphs (g)(1) and (g)(2) of this section for individuals for 
whom it is issuing, or has issued, unescorted access authority, and who 
are not covered by a certification from an aircraft operator under 
paragraph (n) of this section. The airport operator may not make 
determinations for individuals described in Sec. 108.229 of this 
chapter.
    (h) Correction of FBI records and notification of disqualification. 
(1) Before making a final decision to deny unescorted access authority 
to an individual described in paragraph (b) of this section, the 
airport operator must advise him or her that the FBI criminal record 
discloses information that would disqualify him or her from receiving 
or retaining unescorted access authority and provide the individual 
with a copy of the FBI record if he or she requests it.
    (2) The airport operator must notify an individual that a final 
decision has been made to grant or deny unescorted access authority.
    (3) Immediately following the suspension of unescorted access 
authority of an individual, the airport operator must advise him or her 
that the FBI criminal record discloses information that disqualifies 
him or her from retaining unescorted access authority and provide the 
individual with a copy of the FBI record if he or she requests it.
    (i) 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 or her record, 
subject to the following conditions--
    (1) For an individual seeking unescorted access authority on or 
after December 6, 2001, the following applies:
    (i) Within 30 days after being advised that the criminal record 
received from the FBI discloses a disqualifying criminal offense, the 
individual must notify the airport operator in writing of his or her 
intent to correct any information he or she believes to be inaccurate. 
The airport operator must obtain a copy, or accept a copy from the 
individual, of the revised FBI record, or a certified true copy of the 
information from the appropriate court, prior to granting unescorted 
access authority.
    (ii) If no notification, as described in paragraph (h)(1) of this 
section, is received within 30 days, the airport operator may make a 
final determination to deny unescorted access authority.

[[Page 63483]]

    (2) For an individual with unescorted access authority before 
December 6, 2001, the following applies: Within 30 days after being 
advised of suspension because the criminal record received from the FBI 
discloses a disqualifying criminal offense, the individual must notify 
the airport operator in writing of his or her intent to correct any 
information he or she believes to be inaccurate. The airport operator 
must obtain a copy, or accept a copy from the individual, of the 
revised FBI record, or a certified true copy of the information from 
the appropriate court, prior to reinstating unescorted access 
authority.
    (j) Limits on dissemination of results. Criminal record information 
provided by the FBI may be used only to carry out this section and 
Sec. 108.229 of this chapter. No person may disseminate the results of 
a CHRC to anyone other than:
    (1) The individual to whom the record pertains, or that 
individual's authorized representative.
    (2) Officials of other airport operators who are determining 
whether to grant unescorted access to the individual under this part.
    (3) Aircraft operators who are determining whether to grant 
unescorted access to the individual or authorize the individual to 
perform screening functions under part 108 of this chapter.
    (4) Others designated by the Administrator.
    (k) Recordkeeping. The airport operator must maintain the following 
information.
    (1) Investigations conducted before December 6, 2001. The airport 
operator must maintain and control the access or employment history 
investigation files, including the criminal history records results 
portion, or the appropriate certifications, for investigations 
conducted before December 6, 2001.
    (2) Fingerprint application process on or after December 6, 2001. 
Except when the airport operator has received a certification under 
paragraph (n) of this section, the airport operator must physically 
maintain, control, and, as appropriate, destroy the fingerprint 
application and the criminal record. Only direct airport operator 
employees may carry out the responsibility for maintaining, 
controlling, and destroying criminal records.
    (3) Certification on or after December 6, 2001. The airport 
operator must maintain the certifications provided under paragraph (n) 
of this section.
    (4) Protection of records--all investigations. The records 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.
    (5) Duration--all investigations. The records identified in this 
section with regard to an individual must be maintained until 180 days 
after the termination of the individual's unescorted access authority. 
When files are no longer maintained, the criminal record must be 
destroyed.
    (1) Continuing responsibilities. (1) Each individual with 
unescorted access authority on December 6, 2001, who had a 
disqualifying criminal offense in paragraph (d) of this section on or 
after December 6, 1991, must, by January 7, 2002, report the conviction 
to the airport operator and surrender the SIDA access medium to the 
issuer.
    (2) Each individual with unescorted access authority who has a 
disqualifying criminal offense must report the offense to the airport 
operator and surrender the SIDA access medium to the issuer within 24 
hours of the conviction or the finding of not guilty by reason of 
insanity.
    (3) If information becomes available to the airport operator or the 
airport user indicating that an individual with unescorted access 
authority has a disqualifying criminal offense, the airport operator 
must determine the status of the conviction. If a disqualifying offense 
is confirmed the airport operator must immediately revoke any 
unescorted access authority.
    (m) Exceptions. Notwithstanding the requirements of this section, 
an airport operator may authorize the following individuals to have 
unescorted access authority:
    (1) An employee of the Federal, state, or local government 
(including a law enforcement officer (LEO)) who, as a condition of 
employment, has been subjected to an employment investigation which 
includes a criminal records 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 authority by another airport operator, 
airport user, or aircraft operator, provided the grant for his or her 
unescorted access authority was based upon a fingerprint-based CHRC 
through the FAA.
    (4) An individual who has been continuously employed by an aircraft 
operator, in a position with authority to perform screening functions, 
provided the grant for his or her authority to perform screening 
functions was based upon a fingerprint-based CHRC through the FAA.
    (n) Certifications by aircraft operators. An airport operator is in 
compliance with its obligation under paragraph (b) or (c) of this 
section when the airport operator accepts, for each individual seeking 
unescorted access authority, certification from an aircraft operator 
subject to part 108 of this chapter indicating it has complied with 
Sec. 108.229 of this chapter for the aircraft operator's employees and 
contractors seeking unescorted access authority. If the airport 
operator accepts a certification from the aircraft operator, the 
airport operator may not require the aircraft operator to provide a 
copy of the CHRC.
    (o) Airport operator responsibility. The airport operator must--
    (1) Designate the ASC, in the security program, or a direct 
employee if the ASC is not a direct employee, to be responsible for 
maintaining, controlling, and destroying the criminal record files when 
their maintenance is no longer required by paragraph (k) of this 
section.
    (2) Designate the ASC, in the security program, to serve as the 
contact to receive notification from individuals applying for 
unescorted access authority of their intent to seek correction of their 
FBI criminal record.
    (3) Audit the employment history investigations performed by the 
airport operator in accordance with this section and Sec. 107.31 as it 
existed before November 14, 2001 (see 14 CFR parts 60 to 139 revised as 
of January 1, 2001), and those investigations conducted by the airport 
users who provided certification to the airport operator. The audit 
program must be set forth in the airport security program.
    (p) Airport user responsibility. (1) The airport user must report 
to the airport operator information, as it becomes available, that 
indicates an individual with unescorted access authority may have a 
disqualifying criminal offense.
    (2) The airport user must maintain and control, in compliance with 
paragraph (k) of this section, the employment history investigation 
files for investigations conducted before December 6, 2001, unless the 
airport operator decides to maintain and control the employment history 
investigation file.
    (3) The airport user must provide the airport operator with either 
the name or title of the individual acting as custodian of the files 
described in this paragraph, the address of the location where the 
files are maintained, and the phone number of that location. The 
airport user must provide the airport operator and the FAA with access 
to these files.

[[Page 63484]]

PART 108--AIRCRAFT OPERATOR SECURITY

    3. The authority 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. Revise Sec. 108.229 to read as follows:


Sec. 108.229  Fingerprint-based criminal history records checks (CHRC).

    (a) Scope. The following persons are within the scope of this 
section--
    (1)(i) Each employee or contract employee covered under a 
certification made to an airport operator on or after December 6, 2001, 
pursuant to Sec. 107.209(n) of this chapter.
    (ii) Each individual issued on or after December 6, 2001, aircraft 
operator identification media that one or more airports accepts as 
airport-approved media for unescorted access authority within a 
security identification display area (SIDA), as described in 
Sec. 107.205 of this chapter (referred to as unescorted access 
authority).
    (iii) Each individual, on or after December 6, 2001, granted 
authority to perform the following screening functions at locations 
within the United States (referred to as authority to perform screening 
functions)--
    (A) Screening passengers or property that will be carried in a 
cabin of an aircraft of an aircraft operator required to screen 
passengers under this part.
    (B) Serving as an immediate supervisor (checkpoint security 
supervisor (CSS)), and the next supervisory level (shift or site 
supervisor), to those individuals described in paragraph (a)(1)(iii)(A) 
of this section.
    (2)(i) Each employee or contract employee covered under a 
certification made to an airport operator pursuant to Sec. 107.31(n) as 
it existed before November 14, 2001 (see 14 CFR parts 60 to 139 revised 
as of January 1, 2001), or pursuant to Sec. 107.209(n) of this chapter 
before December 6, 2001.
    (ii) Each individual who holds on December 6, 2001, an aircraft 
operator identification media that one or more airports accepts as 
airport-approved media for unescorted access authority within a 
security identification display area (SIDA), as described in 
Sec. 107.205 of this chapter.
    (iii) Each individual who is performing on December 6, 2001, a 
screening function identified in paragraph (a)(1)(iii) of this section.
    (b) Individuals seeking unescorted access authority or authority to 
perform screening functions. Each aircraft operator must ensure that 
each individual identified in (a)(1) of this section has undergone a 
fingerprint-based CHRC that does not disclose that he or she has a 
disqualifying criminal offense, as described in paragraph (d) of this 
section, before--
    (1) Making a certification to an airport operator regarding that 
individual;
    (2) Issuing an aircraft operator identification medium to that 
individual; or
    (3) Authorizing that individual authority to perform screening 
functions.
    (c) Individuals who have not had a CHRC. (1) Each aircraft operator 
must ensure that, on and after December 6, 2002:
    (i) No individual retains unescorted access authority, whether 
obtained as a result of a certification to an airport operator under 
Sec. 107.31(n) as it existed before November 14, 2001 (see 14 CFR parts 
60 to 139 revised as of January 1, 2001), or under Sec. 107.209(n) of 
this chapter before December 6, 2001, or obtained as a result of the 
issuance of an aircraft operator's identification media, unless the 
individual has been subject to a fingerprint-based CHRC for unescorted 
access authority under this part.
    (ii) No individual continues to have authority to perform screening 
functions described in paragraph (a)(1)(iii) of this section, unless 
the individual has been subject to a fingerprint-based CHRC under this 
part.
    (2) When a CHRC discloses a disqualifying criminal offense for 
which the conviction or finding was on or after December 6, 1991, the 
aircraft operator must immediately suspend that individual's unescorted 
access authority or authority to perform screening functions.
    (d) Disqualifying criminal offenses. An individual has a 
disqualifying criminal offense if the individual has been convicted, or 
found not guilty by reason of insanity, of any of the disqualifying 
crimes listed in this paragraph in any jurisdiction during the 10 years 
before the date of the individual's application for unescorted access 
authority or authority to perform screening functions, or while the 
individual has unescorted access authority or authority to perform 
screening functions. The disqualifying criminal offenses are as 
follows--
    (1) Forgery of certificates, false marking of aircraft, and other 
aircraft registration violation; 49 U.S.C. 46306.
    (2) Interference with air navigation; 49 U.S.C. 46308.
    (3) Improper transportation of a hazardous material; 49 U.S.C. 
46312.
    (4) Aircraft piracy; 49 U.S.C. 46502.
    (5) Interference with flight crew members or flight attendants; 49 
U.S.C. 46504.
    (6) Commission of certain crimes aboard aircraft in flight; 49 
U.S.C. 46506.
    (7) Carrying a weapon or explosive aboard aircraft; 49 U.S.C. 
46505.
    (8) Conveying false information and threats; 49 U.S.C. 46507.
    (9) Aircraft piracy outside the special aircraft jurisdiction of 
the United States; 49 U.S.C. 46502(b).
    (10) Lighting violations involving transporting controlled 
substances; 49 U.S.C. 46315.
    (11) 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.
    (12) Destruction of an aircraft or aircraft facility; 18 U.S.C. 32.
    (13) Murder.
    (14) Assault with intent to murder.
    (15) Espionage.
    (16) Sedition.
    (17) Kidnapping or hostage taking.
    (18) Treason.
    (19) Rape or aggravated sexual abuse.
    (20) Unlawful possession, use, sale, distribution, or manufacture 
of an explosive or weapon.
    (21) Extortion.
    (22) Armed or felony unarmed robbery.
    (23) Distribution of, or intent to distribute, a controlled 
substance.
    (24) Felony arson.
    (25) Felony involving a threat.
    (26) Felony involving--
    (i) Willful destruction of property;
    (ii) Importation or manufacture of a controlled substance;
    (iii) Burglary;
    (iv) Theft;
    (v) Dishonesty, fraud, or misrepresentation;
    (vi) Possession or distribution of stolen property;
    (vii) Aggravated assault;
    (viii) Bribery; or
    (ix) Illegal possession of a controlled substance punishable by a 
maximum term of imprisonment of more than 1 year.
    (27) Violence at international airports; 18 U.S.C. 37.
    (28) Conspiracy or attempt to commit any of the criminal acts 
listed in this paragraph.
    (e) Fingerprint application and processing. (1) At the time of 
fingerprinting, the aircraft operator must provide the individual to be 
fingerprinted a fingerprint application that includes only the 
following--

[[Page 63485]]

    (i) The disqualifying criminal offenses described in paragraph (d) 
of this section.
    (ii) A statement that the individual signing the application does 
not have a disqualifying criminal offense.
    (iii) A statement informing the individual that Federal regulations 
under 14 CFR 108.229 impose a continuing obligation to disclose to the 
aircraft operator within 24 hours if he or she is convicted of any 
disqualifying criminal offense that occurs while he or she has 
unescorted access authority.
    (iv) A statement reading, ``The information I have provided on this 
application is true, complete, and correct to the best of my knowledge 
and belief and is provided in good faith. I understand that a knowing 
and willful false statement on this application can be punished by fine 
or imprisonment or both. (See section 1001 of Title 18 United States 
Code.)''
    (v) A line for the printed name of the individual.
    (vi) A line for the individual's signature and date of signature.
    (2) Each individual must complete and sign the application prior to 
submitting his or her fingerprints.
    (3) The aircraft operator must verify the identity of the 
individual through two forms of identification prior to fingerprinting, 
and ensure that the printed name on the fingerprint application is 
legible. At least one of the two forms of identification must have been 
issued by a government authority, and at least one must include a 
photo.
    (4) The aircraft operator must:
    (i) Advise the individual that a copy of the criminal record 
received from the FBI will be provided to the individual, if requested 
by the individual in writing; and
    (ii) Identify a point of contact if the individual has questions 
about the results of the CHRC.
    (5) The aircraft operator must collect, control, and process one 
set of legible and classifiable fingerprints under direct observation 
by the aircraft operator or a law enforcement officer.
    (6) Fingerprints may be obtained and processed electronically, or 
recorded on fingerprint cards approved by the FBI and distributed by 
the FAA for that purpose.
    (7) The fingerprint submission must be forwarded to the FAA in the 
manner specified by the Administrator.
    (f) Fingerprinting fees. Aircraft operators must pay for all 
fingerprints in a form and manner approved by the FAA. The payment must 
be made at the designated rate (available from the local FAA security 
office) for each set of fingerprints submitted. Information about 
payment options is available though the designated FAA headquarters 
point of contact. Individual personal checks are not acceptable.
    (g) Determination of arrest status. (1) When a CHRC on an 
individual described in paragraph (a)(1) of this section discloses an 
arrest for any disqualifying criminal offense listed in paragraph (d) 
of this section without indicating a disposition, the aircraft operator 
must determine, after investigation, that the arrest did not result in 
a disqualifying offense before granting unescorted access authority or 
authority to perform screening functions.
    (2) When a CHRC on an individual described in paragraph (a)(2) of 
this section discloses an arrest for any disqualifying criminal offense 
without indicating a disposition, the aircraft operator must suspend 
the individual's unescorted access authority or authority to perform 
screening functions not later than 45 days after obtaining the CHRC 
unless the aircraft operator determines, after investigation, that the 
arrest did not result in a disqualifying criminal offense.
    (3) The aircraft operator may only make the determinations required 
in paragraphs (g)(1) and (g)(2) of this section for individuals for 
whom it is issuing, or has issued, unescorted access authority; 
individuals for whom it is issuing, or has issued, authority to perform 
screening functions; and individuals who are covered by a certification 
from an aircraft operator under Sec. 107.209 (n) of this chapter. The 
aircraft operator may not make determinations for individuals described 
in Sec. 107.209 (a) of this chapter.
    (h) Correction of FBI records and notification of disqualification. 
(1) Before making a final decision to deny authority to an individual 
described in paragraph (a)(1) of this section, the aircraft operator 
must advise him or her that the FBI criminal record discloses 
information that would disqualify him or her from receiving or 
retaining unescorted access authority or authority to perform screening 
functions and provide the individual with a copy of the FBI record if 
he or she requests it.
    (2) The aircraft operator must notify an individual that a final 
decision has been made to grant or deny unescorted access authority or 
authority to perform screening functions.
    (3) Immediately following the suspension of unescorted access 
authority or authority to perform screening functions, the aircraft 
operator must advise the individual that the FBI criminal record 
discloses information that disqualifies him or her from retaining his 
or her authority, and provide the individual with a copy of the FBI 
record if he or she requests it.
    (i) 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 or her record, 
subject to the following conditions--
    (1) For an individual seeking unescorted access authority or 
authority to perform screening functions on or after December 6, 2001, 
the following applies:
    (i) Within 30 days after being advised that the criminal record 
received from the FBI discloses a disqualifying criminal offense, the 
individual must notify the aircraft operator in writing of his or her 
intent to correct any information he or she believes to be inaccurate. 
The aircraft operator must obtain a copy, or accept a copy from the 
individual, of the revised FBI record or a certified true copy of the 
information from the appropriate court, prior to granting unescorted 
access authority or authority to perform screening functions.
    (ii) If no notification, as described in paragraph (h)(1) of this 
section, is received within 30 days, the aircraft operator may make a 
final determination to deny unescorted access authority or authority to 
perform screening functions.
    (2) For an individual with unescorted access authority or authority 
to perform screening functions before December 6, 2001, the following 
applies: Within 30 days after being advised of suspension because the 
criminal record received from the FBI discloses a disqualifying 
criminal offense, the individual must notify the aircraft operator in 
writing of his or her intent to correct any information he or she 
believes to be inaccurate. The aircraft operator must obtain a copy, or 
accept a copy from the individual, of the revised FBI record, or a 
certified true copy of the information from the appropriate court, 
prior to reinstating unescorted access authority or authority to 
perform screening functions.
    (j) Limits on dissemination of results. Criminal record information 
provided by the FBI may be used only to carry out this section and 
Sec. 107.209 of this chapter. No person may disseminate the results of 
a CHRC to anyone other than:
    (1) The individual to whom the record pertains, or that 
individual's authorized representative.
    (2) Officials of airport operators who are determining whether to 
grant

[[Page 63486]]

unescorted access to the individual under part 107 of this chapter when 
the determination is not based on the aircraft operator's certification 
under Sec. 107.209 (n) of this chapter.
    (3) Other aircraft operators who are determining whether to grant 
unescorted access to the individual or authorize the individual to 
perform screening functions under this part.
    (4) Others designated by the Administrator.
    (k) Recordkeeping. The aircraft operator must maintain the 
following information.
    (1) Investigation conducted before December 6, 2001. The aircraft 
operator must maintain and control the access or employment history 
investigation files, including the criminal history records results 
portion, for investigations conducted before December 6, 2001.
    (2) Fingerprint application process on or after December 6, 2001. 
The aircraft operator must physically maintain, control, and, as 
appropriate, destroy the fingerprint application and the criminal 
record. Only direct aircraft operator employees may carry out the 
responsibility for maintaining, controlling, and destroying criminal 
records.
    (3) Protection of records--all investigations. The records 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.
    (4) Duration--all investigations. The records identified in this 
section with regard to an individual must be maintained until 180 days 
after the termination of the individual's unescorted access authority 
or authority to perform screening functions. When files are no longer 
maintained, the criminal record must be destroyed.
    (l) Continuing responsibilities. (1) Each individual with 
unescorted access authority or the authority to perform screening 
functions on December 6, 2001, who had a disqualifying criminal offense 
in paragraph (d) of this section on or after December 6, 1991, must, by 
January 7, 2002, report the conviction to the aircraft operator and 
surrender the SIDA access medium to the issuer and cease performing 
screening functions, as applicable.
    (2) Each individual with unescorted access authority or authority 
to perform screening functions who has a disqualifying criminal offense 
must report the offense to the aircraft operator and surrender the SIDA 
access medium to the issuer within 24 hours of the conviction or the 
finding of not guilty by reason of insanity.
    (3) If information becomes available to the aircraft operator 
indicating that an individual with unescorted access authority or 
authority to perform screening functions has a possible conviction for 
any disqualifying criminal offense in paragraph (d) of this section, 
the aircraft operator must determine the status of the conviction. If a 
disqualifying criminal offense is confirmed the aircraft operator must 
immediately revoke any unescorted access authority and authority to 
perform screening functions.
    (m) Aircraft operator responsibility. The aircraft operator must--
    (1) Designate an individual(s) to be responsible for maintaining 
and controlling the employment history investigations for those whom 
the aircraft operator has made a certification to an airport operator 
under Sec. 107.209 (n) of this chapter, and for those whom the aircraft 
operator has issued identification media that are airport-accepted. The 
aircraft operator must designate a direct employee to maintain, 
control, and, as appropriate, destroy criminal records.
    (2) Designate an individual(s) to maintain the employment history 
investigations of individuals with authority to perform screening 
functions whose files must be maintained at the location or station 
where the screener is performing his or her duties.
    (3) Designate an individual(s) at appropriate locations to serve as 
the contact to receive notification from individuals seeking unescorted 
access authority or authority to perform screening functions of their 
intent to seek correction of their FBI criminal record.
    (4) Audit the employment history investigations performed in 
accordance with this section and Sec. 108.33 as it existed before 
November 14, 2001 (see 14 CFR parts 60 to 139 revised as of January 1, 
2001). The aircraft operator must set forth the audit procedures in its 
security program. Section 138 of ATSA removes the exemption for the 
individuals with access to U.S. Customs' secured areas.

    Issued in Washington, DC on December 3, 2001.
Jane F. Garvey,
Administrator.
[FR Doc. 01-30282 Filed 12-3-01; 4:56 pm]
BILLING CODE 4910-13-P
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