Aircraft Operator Security  

[Federal Register: July 17, 2001 (Volume 66, Number 137)]
[Rules and Regulations]
[Page 37329-37368]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17jy01-25]
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DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 108
[Docket No. FAA-2001-8725; Formerly Docket No. 28978; Amendment No. 108-18 ]
RIN 2120-AD45
Aircraft Operator Security
AGENCY: Federal Aviation Administration (FAA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule amends the existing airplane operator security rule. It revises the applicability section, definitions, and terms; reorganizes this part into subparts containing related requirements; and incorporates some requirements already implemented in the air carrier standard security program. Specifically, this final rule increases the number of aircraft operators that must have security programs, to include all that enplane from or deplane into a sterile area and certain helicopter operators. This final rule expands the training requirements for aircraft operator security personnel. Further, this final rule clarifies the procedures for carriage of prisoners under the control of armed law enforcement officers, procedures for carriage of weapons by law enforcement officers, and procedures for aircraft operators to comment on security directives issued by the FAA. This rule requires aircraft operators to participate in the airport sponsored contingency exercise or its equivalent. As part 108 applies to operators of rotorcraft as well as fixed-wing aircraft, this final rule changes the title of this part from ``Airplane Operator Security'' to ``Aircraft Operator Security.'' This final rule contains changes that are intended to enhance security for the traveling public, and aircraft operators.
EFFECTIVE DATE: This rule is effective November 14, 2001. The incorporation by reference of certain publications in this rule is approved by the Director of the Federal Register as of November 14, 2001.
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:
Availability of Final Rule
You can get an electronic copy using the Internet by taking the following steps:
(1) Go to the 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 Federal Register's web page at http://www.access.gpo.gov/su_docs/aces/
aces140.html.
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 Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. Therefore, any small entity that has a question regarding this document may contact their local FAA official, or the person listed under FOR FURTHER INFORMATION CONTACT. You can find out more about SBREFA on the Internet at our site, http://www.faa.gov/avr/arm/
sbrefa.htm. For more information on SBREFA, e-mail us 9-AWA-
SBREFA@....
Background
This final rule updates the overall regulatory structure for aircraft operator security. It is issued in conjunction with a companion rule revising 14 CFR part 107, Airport Security, published in today's issue of the Federal Register. This final rule is the result of a multi-year effort involving the FAA, airports and aircraft operators, and the Aviation Security Advisory Committee (ASAC). ASAC is a federal advisory committee sanctioned to develop recommendations for improvement of methods, equipment, and procedures to improve civil aviation security. The FAA invited ASAC to comment on the underlying issues, and potential solutions associated with the revision of part 108.
Several measures contained in this final rule have been previously implemented via amendments to the air carrier standard security program. These revisions are considered to be consistent with several of the recommendations of the White House Commission on Aviation Safety and Security and with the security mandates of the Federal Aviation Reauthorization Act of 1996 (Pub. L. 104-264) signed on October 9, 1996.
Terrorism
The terrorist threat level in the United States over the next decade will remain at least as high as it is at present and, indeed, will probably rise. This judgement is based on consideration of a number of factors.
First, there are numerous unresolved conflicts across the globe, many of which show no sign of early resolution. While many of these do not involve the United States directly, the status of the United States as sole superpower means that parties to the conflict are prone to decry either US involvement or lack of involvement.
Second, since the United States is variously perceived as a supporter of unpopular regimes, an enemy of Islam, and an exponent of imperialism (whether political, economic, or cultural), any number of terrorist groups view the United States interests as fundamentally inimical to their own, and thus see attacks against US interests as justifiable, even meritorious.
Third, the expanding geographical range of terrorist activity is increasingly evident. Members of foreign terrorist groups, representatives from state sponsors of terrorism, and radical fundamentalist elements are present in the United States. The activities of some of these individuals and groups go beyond fund-
raising to recruiting other persons (both foreign and US citizens) for terrorist-related activities that may include obtaining and training with weapons, providing safehaven for fugitives, and making bombs. A few foreign terrorist groups have supporters inside the United States who could be used to support terrorism.
Fourth, the vulnerabilities of the critical national infrastructure of the United States may prove inviting to foreign and domestic terrorists wishing to inflict damage on the US economy.
Fifth, although it remains to be seen what lessons terrorists will draw from the World Trade Center bombing in 1993 and the Oklahoma City bombing in 1995, a particularly worrisome development is the increasing
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willingness on the part of various terrorists to carry out attacks intended to bring about indiscriminate casualties.
Finally, the phenomenon of ad hoc or non-traditional terrorists groups (such as the group responsible for the World Trade Center bombing) has become a primary concern to law enforcement. Difficulties exist in denying entry of such individuals (who are not members of any known terrorist group) into the United States, recognizing or identifying them as terrorists once they are here, or anticipating the timing or targets of their attacks.
With respect specifically to the threat to civil aviation in the United States, it must be seen in the context of the broader threat. The events in Asia in early 1995, showed that the terrorists persisted in planning to attack aviation even when there were other targets identifiable with the United States in the area and even when they knew that the security measures protecting aviation had been strengthened. Publicity about problems with US domestic civil aviation security measures increases the potential for attacks here. Civil aviation targets may be chosen by terrorists even if alternative, and (in their view) softer targets are available, especially since an attack on aviation seizes the public's imagination to a degree equaled by few other types of attack.
General Discussion of the Rule
On August 1, 1997 (62 FR 41730), the FAA published Notice 97-12 to revise part 108. Notice 97-12 proposed and requested comments by December 1, 1997.
Concurrent with the issuance of Notice 97-12, the FAA issued Notice 97-13 to revise part 107 on Airport Security (62 FR 41760; August 1, 1997), and held two public meetings. The first public meeting was held in Washington, DC on October 15, 1997, and the second was held on October 22, 1997, in Fort Worth, Texas.
On April 21, 1998, the FAA reopened the comment period and announced two public meetings on Notice 97-13 and Notice 97-12 (63 FR 19691, April 21, 1998). The public meetings were held on May 21, 1998, in Washington, DC, and on June 4, 1998, in Nashville, TN.
As of June 26, 1998, the closing of the second comment period, 160 comments were received addressing Notice 97-12. A majority of the comments were from law enforcement officers addressing the carriage of firearms onboard the aircraft. Comments were also received from specific aircraft operators, local airports, Transport Canada, State departments of transportation (DOT's), American Association of Airport Executives (AAAE), Airport Council International--North America (ACI-
NA), Allied Pilots Association (APA), Air Transport Association (ATA), National Air Carrier Association (NACA), Regional Airline Association (RAA), Cargo Airline Association (CAA), Air Line Pilots Association (ALPA), and Helicopter Association International (HAI). The comments mostly address clarification of terms, carriage of weapons onboard the aircraft by law enforcement officers, transporting passengers under armed escort, and security operations. Generally, commenters suggest that the cost estimates to develop a security program were underestimated, however, no cost estimates were provided. A detailed discussion of the comments appears under ``Section by Section Analysis.''
On Tuesday, August 10, 1999, the FAA reopened the comment period to allow the public to submit additional comments on the compliance program proposed in Notice 97-12 (Sec. 108.103(b)(11) and (c)(6), 64 FR 43322). After considering all the written comments on the compliance program issue, the FAA will consider the need for amending part 108.
The revision of part 108 comprehensively updates the aircraft operator security regulations to more efficiently and effectively address terrorist and other criminal threats to civil aviation. This action incorporates both procedures currently in the air carrier standard security program and new security procedures, in a manner that is intended to allow regulated entities and individuals to understand their responsibilities more readily. Lastly, the revision incorporates certain new measures that provide for security enhancements.
Airport security programs required by part 107 also have been amended extensively since 1985. The FAA is revising part 107, which governs airport security, concurrently with this part. All references to part 107 in this preamble are intended to refer to part 107 as published in today's issue of the Federal Register.
The revisions of part 108 and part 107 represent a comprehensive approach toward upgrading the security requirements of the civil aviation system. The intent of these revisions is to foster consistency and standardization throughout the national civil aviation security program. Where possible, the revisions of parts 107 and 108 contain nearly identical language to enhance, clarify, or require new security measures for implementation by both aircraft and airport operators.
Significant changes between the final rule include the following: (1) Increases the number of aircraft operators who must have security programs; (2) Moves some sections from current 14 CFR part 107; (3) Clarifies procedures allowing law enforcement officers to fly armed; (4) Clarifies procedures for transporting prisoners under armed escort; (5) Holds individuals accountable for certain violations; (6) Acknowledges administrative procedures for a formal comment period for security directives.
The changes are discussed in more detail in the Section-by-Section Analysis below.
Section-by-Section Analysis
Title and Organization of Revised Part 108
In this final rule, the FAA revises existing Sec. 108.1 through Sec. 108.33, and adds several new sections. Also, the FAA reorganized some of the material in Notice 97-12 resulting in additional sections addressing specific requirements. These changes are discussed in more detail below. The title ``Airplane Operator Security'' has been changed to ``Aircraft Operator Security,'' as this part applies to operators of rotorcraft as well as fixed-wing aircraft. All references to ``airplane'' in this part are changed to ``aircraft.''
Subpart A--General
Section 108.1 Applicability
Proposal: The FAA proposed, in Sec. 108.1(a)(1), to extend the application of part 108 to certain private charter operations, helicopter operations, and all-cargo carriers.
Comments: The FAA received comments identified as applicable to Sec. 108.1, the comments appear to be directed toward the content of security programs. Accordingly, the FAA has chosen to place those comments and the FAA's response to them in the analysis section for Sec. 108.101.
The ASAC Part 108 Working Group supports permitting helicopter operators to voluntarily participate in a security program. The Part 108 Working Group notes that some helicopter activities place operators in direct contact with large domestic flag carrier operations. When this occurs, helicopter passengers disembark into the secure areas of terminals. The recommendation by the Part 108 Working Group is to allow the expeditious handling of such passengers through secure areas without diminishing the security of the sterile area. In order to do so, the helicopter operators would require an FAA-approved security program.
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FAA response: The FAA continues to believe that this action will enhance the security of the sterile area by minimizing the opportunity for transfer or introduction of dangerous or deadly weapons into the sterile area by unscreened persons disembarking from private charter or helicopter operations into the sterile area.
The FAA concurs with the opinion of the Part 108 Working Group. All aircraft operators that enter the secured areas, enplane from or deplane into a sterile area, or use screening checkpoints, impact the security of all operations, and should have written and approved security programs.
Accordingly, the final rule will extend the applicability of Sec. 108.1 to private charter operations and, under certain specified conditions, will require helicopter operations to adopt and implement a security program.
Section 108.3 Definitions
Proposal: In Notice 97-12, the FAA proposed to add commonly used terms and to update current terms used in part 108. The FAA also proposed to make the definitions in proposed part 107 apply to part 108 as well.
The FAA proposed to add the following definitions: ``accepted security program,'' ``approved security program,'' ``Assistant Administrator,'' and ``principal security inspector.'' The FAA proposed to revise the following definitions: ``passenger-seating configuration,'' ``private charter,'' ``public charter,'' ``scheduled passenger operations,'' and ``sterile area.''
Comments: Alaska Airlines (AS), American Airlines (AA), United Parcel Service Airline (UPS), Cargo Airline Association (CAA), Air Transport Association of America (ATA), Regional Airline Association (RAA), and the National Air Carrier Association (NACA) recommend that terms applicable to airport or aircraft operating areas should be defined in both parts 108 and 107, instead of only being in part 107. In addition, AS, AA, Northwest Airlines (NW), Federal Express (FedEx), RAA, CAA, UPS, and ATA are in strong opposition to the replacement of several terms as proposed in part 107. All of the organizations indicated above recommend retention of the current terms for secured area and SIDA, since they are understood and used daily by regulated parties and the FAA.
The FAA also received several comments offering definitions for ``public charter,'' ``private charter,'' and ``person.''
FAA response: The FAA has decided to keep the definitions in the most applicable part, with cross references showing that the terms apply to other parts as well. Although it would be convenient for users to have definitions repeated in each part, there is a risk that the definitions would become inconsistent over time, as each part is amended from time to time. Further, it is the FAA's experience that aircraft operators generally provide written guidance to their personnel, not simply copies of part 108. Operators can easily include in their guidance pertinent portions of part 107, as well as parts 1, 109, 129, and 191 as needed.
The FAA's decision regarding definitions as applied to the airport environment are contained in the final rule for part 107.
In this final rule, the FAA has made several editorial changes to the definitions. The definitions for ``accepted security program'' and ``approved security program'' have been removed and replaced with a single term, ``aircraft operator security program.'' For the purposes of this final rule, the definition of ``accepted security programs'' will be unnecessary because the references to part 129 have been removed. The only security programs which will be discussed in this final rule are those that have been approved by the Administrator under part 108.
In the current part 108, the term ``Director of Civil Aviation Security'' is used to refer to the official who oversees civil aviation security operations and approves air carrier security programs. Under the internal FAA reorganization, the current title of this position is ``Associate Administrator for Civil Aviation Security;'' however, the statute refers to the ``Assistant Administrator for Civil Aviation Security.'' As such, paragraph (b) of this section will use the title ``Assistant Administrator for Civil Aviation Security.'' In addition, paragraph (b) will clarify that the Deputy Assistant Administrator for Civil Aviation Security, or any individual formally designated as Acting Assistant Administrator or Acting Deputy Administrator, could act in the capacity of the Assistant Administrator. In addition, the duties of the Assistant Administrator could be further delegated.
With regard to the proposed term ``principal security inspector,'' it has been determined that it would be best to use the general term ``Administrator'' rather than to name specific positions held by various employees working on behalf of the Administrator. As a result of that decision, the term ``principal security inspector'' has been removed.
The FAA considered the definitions offered by the commenters for ``public charter'' and ``rivate charter'' and determined that they did not meet FAA security needs. The FAA has determined the need to retain the proposed definitions for ``public charter'' and ``private charter,'' but is correcting an editorial mistake in the NPRM that gave the definition for ``public charter'' as the definition for the term ``private charter.'' The definitions in part 108 are based on the different security issues present when all passengers are affiliated (private charters) and when passengers may have little or no affiliation with each other (public charter). The definitions suggested by the commenters are based more on economic concerns.
Although commenters offered other definitions for the term ``person,'' the definition for ``person'' is contained in 14 CFR part 1, and applies to all FAA regulations. The term as used in this part is in concert with that definition and as such, this final rule will not introduce a new definition for the term ``person.''
The term ``scheduled passenger operations'' has been rewritten for clarity with no change from the intent of the current regulation.
Notice 97-12 proposed to define ``sterile area'' as ``a portion of an airport defined in the airport security program to which access generally is controlled by either the inspection of persons and property in accordance with an approved or accepted security program required under Sec. 108.105 of this part or Sec. 129.25 of this chapter, or an access control system meeting the requirements of Sec. 107.207 of this chapter.''
The final rule simplifies this definition, by describing the function of the sterile area. It is defined as ``a portion of an airport defined in the airport security program that provides passengers access to boarding aircraft and to which access generally is controlled by an aircraft operator or foreign air carrier through the screening of persons and property in accordance with a security program.'' The reason the sterile area is needed, is to provide access to aircraft by passengers. Its use permits the screening of passengers well before the boarding of the aircraft, both in time and distance, so that screening can be accomplished more efficiently. In most cases, persons other than passengers may enter the sterile area, but sometimes such access is limited for security or crowd control purposes. The means by which access is controlled is not part of the definition, but is set out in Sec. 108.201 and the security program.
The current rule refers to ``certificate holders.'' Notice 97-12 proposed to
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change this term to ``air carriers,'' because there are many different kinds of certificate holders under FAA regulations, including airport operators (part 139). After further consideration, the term ``air carrier'' in part 108 is being changed to ``aircraft operator.'' There are some aircraft operators that will be required to hold security programs under part 108 that do not hold ``air carrier operating certificates,'' rather they hold ``operating certificates'' under part 119. For instance, those operators engaging in intrastate air transportation are not considered part of the air transportation industry, and are not required to hold air carrier operating certificates under part 119. However, they are required to screen their passengers in accordance with 49 U.S.C. 44901, and are required to hold a certificate under part 119.
In addition, some private charter operations may be conducted by those operators holding operating certificates, not air carrier operating certificates. Section 108.101 will require them to adopt a security program if they use a sterile area to enplane or deplane passengers, in order to protect the integrity of the sterile area.
Accordingly, ``aircraft operator'' is defined in Sec. 108.3 as ``a holder of an air carrier operating certificate or an operating certificate under part 119 of this chapter that conducts operations described in Sec. 108.101.'' This definition makes it clear that general aviation operators are not under part 108.
Two definitions that were not included in the NPRM, but will be added to the final rule are ``checked baggage'' and ``cargo.'' These terms will be added to help the reader understand two amended sections, which are numbered and entitled Sec. 108.203, ``Acceptance and screening of checked baggage,'' and Sec. 108.205, ``Acceptance and screening of cargo.'' The current rule also provides that one kind of private charter involves ``civil or military air movements.'' In Notice 97-12, this distinction was proposed to be termed ``civil or military air transportation.'' This final rule will use the term ``air movements.'' Air transportation has a particular meaning in the statute, and involves holding out to the public. Private charters may not involve holding out to the public and, therefore, to avoid confusion, the term will remain ``air movement.''
Further, Notices 97-12 and 97-13 proposed the use of the terms ``explosive, incendiary, deadly or dangerous weapon, or destructive substance'' in describing what items may not be permitted in sterile areas or onboard aircraft (see e.g., proposed Secs. 107.101 and 108.201(b)). Some commenters request clarification of these terms, and question the meaning of the term ``destructive substance.'' They state that the term could be read as including various hazardous materials that are subject to extensive regulation under the Hazardous Materials Regulations (HMR), 49 CFR part 172, and that the terms ``explosive'' and ``incendiary'' are sufficient.
The FAA has decided not to use the term ``destructive substance'' as proposed. The term ``destructive substance'' is used in the statute, 49 USC 44902, however, the FAA believes the term is confusing and that its use would not add any benefits to this final rule. Aircraft operators will not be responsible for searching for substances other than by the means set forth in their security program, or any security directives that may be issued.
Section 108.5 Inspection Authority
Proposal: Notice 97-12 proposed to add a section on the inspection authority of the FAA. The authority of the Administrator to inspect for compliance with statutory and regulatory requirements is granted in 49 U.S.C. 40113. Proposed Sec. 108.5(a) stated that the air carrier must allow the FAA to make inspections at any time or place to determine compliance with this rule, the statute, and the air carrier security program. This paragraph was largely based on Sec. 119.59, which provides that the FAA may inspect air carriers and commercial operators for compliance with safety rules.
Proposed Sec. 108.5(b) included the requirement found in current Sec. 108.27 that on the request of the FAA, the air carrier must provide evidence of compliance with the rules and with its own security program. Proposed Sec. 108.5(c) would have required air carriers to issue to any FAA Special Agent access and identification media to permit unescorted access to, and movement within, any exclusive area for which the air carrier has taken responsibility.
Comments: American Airlines, FedEx, UPS, and ATA believe the scope of proposed Sec. 108.5(a) and (c) is too broad and could subject air carriers to unreasonable and frequent intrusions by FAA personnel, that off-airport inspections such as at corporate headquarters should not be permitted, and that unannounced inspections could result in unnecessary disruption. American Airlines states that the FAA should provide written notice of inspections so that management can observe and take immediate corrective action if needed. Continental Airlines (CO) states that the section should refer to inspections ``at any reasonable time or place.'' It notes that some inspections would be at corporate headquarters, which are closed during some hours. Northwest Airlines (NW) requests that the rule be modified to ensure air carriers are protected from unreasonable intrusion into their private corporate areas of business. Alaska Airlines states that not all FAA Special Agents are trained in dangerous goods, cargo security, and passenger security. Alaska Airlines also notes that the proposal did not address the timeframe of issuing the media. Alaska Airlines asks whether the special agents would have safety training in ramp safety. United Express states that the inspections should be performed only by FAA personnel trained to perform such inspections. Trans World Airlines states that there should be limitations to ensure air carrier operations are not unnecessarily interrupted. The RAA states that the proposal is written too broadly and should apply only to FAA inspectors trained in security inspections and states that non-security related surveillance should not be included in the security regulations.
FAA response: This section is intended to accomplish several important tasks. Paragraphs (a), (b), and (c) will provide information about the FAA's authority, which has existed since 1928, to conduct inspections and tests. Paragraphs (a) and (b) also will set forth affirmative duties on the aircraft operator to cooperate with and allow the inspections and tests, and its failure to do so could result in enforcement action against the aircraft operator. Paragraph (d) will require the aircraft operator to issue access and identification media to FAA special agents, which will assist them in carrying out their inspection duties.
The FAA agrees with the commenters that the FAA is required to conduct its investigations and tests in a reasonable manner, but does not believe that the words ``reasonable'' should be added to the regulation. The wording is similar to that used in a number of other FAA rules that have existed for years, including Sec. 119.59 (aircraft operators and commercial operators), Sec. 141.21 (pilot schools), Sec. 145.23 (repair stations), and Sec. 147.43 (aviation maintenance technician schools). The wording of these rules has not caused significant problems in the past. The FAA does not anticipate any change in its inspection procedures based on this new rule.
This new section will provide a basis for enforcement action in the event that an aircraft operator fails to allow the Administrator to conduct inspections
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and tests as required under this section. While the Administrator has always had authority to conduct inspections and tests, there were not many options that the Administrator could take if the aircraft operator obstructed the inspection. This rule allows the FAA to take administrative action or civil penalty action if the aircraft operator fails to allow the inspection or test, or otherwise does not comply with the section.
As to the location of inspections, the FAA must be able to inspect each location at which regulated activity is being carried out. Regulated activity under part 108 is conducted primarily at airports, but there are other locations that the FAA must inspect. For example, off-airport baggage check-in locations such as hotels or cruise ships are subject to FAA inspection. In addition, some aircraft operators maintain required records of employment history, verification, and criminal history records checks (Sec. 108.229) at their corporate offices. These required records are periodically inspected by FAA Special Agents. It is FAA practice to make arrangements for a records review ahead of time, and to schedule the inspection for normal business hours, to ensure that aircraft operator personnel are available to assist and that the inspection does not cause undue disruption.
As to the timing of inspections, the FAA is aware of the need not to unduly interfere with operations. Often inspections are announced ahead of time to ensure that aircraft operator personnel are available to observe and assist. However, many inspections and tests can only be done effectively if unannounced, to determine whether the aircraft operator is in compliance when it does not know the FAA may be inspecting. Further, the FAA must sometimes inspect and test during peak traffic periods at the airport to ensure that even during the busiest times aircraft operators are in compliance with the security requirements. These peak periods are when the largest portion of the traveling public is being protected by the security procedures.
Regarding FAA personnel, the FAA takes care to only authorize trained personnel to conduct inspections. These individuals receive training (both classroom and on-the-job) on ramp safety and procedures, in addition to the training they receive on technical security requirements.
Several changes have been made in the final rule. Proposed Sec. 108.5(a) referred to determining the compliance of the airport operator, aircraft operator, foreign air carrier operator, and other airport tenants. The final rule also will list the compliance of indirect air carriers, which must have security programs under part 109. Indirect air carriers have important security responsibilities, and the FAA must be able to inspect and test for their compliance. An inspection of an aircraft operator's cargo facility, for instance, reveals information about the compliance of both the aircraft operator being inspected and any indirect air carrier that has transferred cargo to that aircraft operator.
Section 108.5 only provides for inspection by the FAA. Unlike the Notice, it does not refer to inspection by other Federal government entities. The FAA has no authority to grant or to deny inspection authority to another agency. The section was changed to avoid any appearance that the FAA was purporting to grant such authority.
Proposed Sec. 108.5(a)(1) and (2) referred to determining compliance with the aircraft operator security program and with part 108. The final rule in Sec. 108.5(a)(1) also lists compliance with parts 107 (airport operators), 109 (indirect air carriers), 129 (foreign air carrier operations), and 191 (sensitive security information), and any security programs under those parts. In any given area of an airport, there may be duties which aircraft operators, airport operators, and the others must carry out. If a Special Agent is in an aircraft operator's exclusive area, for instance, he/she might also be inspecting access doors that are controlled, in whole or part, by the airport operator. This section will clarify that the Special Agent may be inspecting for compliance with one or all of these parts or security programs.
New Sec. 108.5(a)(2) refers to 49 U.S.C. Subtitle VII. That subtitle, Aviation Programs, contains much of the enabling legislation for the FAA. Most of these provisions were in the Federal Aviation Act of 1958, as amended (49 U.S.C. appx. 1301 et al.), before that Act was recodified in 1994.
Proposed Sec. 108.5(a)(3) referred to determining compliance with 49 CFR part 172, which provides requirements under the Hazardous Materials Transportation Act. This reference has been removed from the final rule. The FAA will continue to have authority to inspect for compliance with Hazardous Materials Regulations, but its authority is based on a different statute than that for civil aviation security. Part 108 is devoted to civil aviation security issues. To avoid misunderstanding, reference to hazardous materials inspections will be deleted.
Proposed Sec. 108.5(a) referred to the Administrator making inspections and tests, and Sec. 108.5(b) referred to the aircraft operator providing evidence of compliance to the Administrator. The final rule will add the clarification that these requirements include the FAA making copies of records or the aircraft operator providing copies. Obtaining copies of records is an inherent part of the FAA inspecting compliance with safety and security requirements. It is necessary to preserve the records for further review by the FAA, and on occasion, use as evidence. This situation is true for all FAA inspections, including those conducted by FAA Aviation Safety Inspectors (who look at compliance with operational and airworthiness rules) and FAA Special Agents. Often, the copying is done at the aircraft operator's or airport operator's office with their permission. Sometimes other arrangements are made, such as the FAA temporarily removing the records to copy them at a FAA office or a commercial service. The FAA has rarely encountered difficulty on this point, but includes these explicit statements in the final rule to avoid misunderstandings in the future.
This section refers to copying of records, not just documents. Records may be kept in a number of formats, such as paper, microfilm, and electronic. The FAA Special Agent may request copies of records in any of these formats, usually requesting that paper copies be made of the records. If another format is used more easily by the Special Agent, he/she may request records in that format.
New Sec. 108.5(c) will state that FAA personnel may gain access to the SIDA and other controlled areas without holding access or identification media issued by the airport or aircraft operator, when it is necessary to conduct an inspection or investigation. This authority is not new. The FAA agrees that in most circumstances, FAA personnel should comply with the access and identification requirements in place at the airport, and it has been FAA practice to require that, when practicable, FAA personnel first obtain local media before conducting inspections. However, there are times when the FAA cannot adequately inspect and test compliance if its employees first obtain access and ID media from the airport or aircraft operator. The act of obtaining such media may provide an opportunity for the FAA representative to be recognized by personnel at the airport, thereby reducing or negating the value of the inspection. The FAA has in the past, and will continue, to make
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unannounced, anonymous tests by entering the SIDA or other areas without first having obtained such media. Such tests are conducted under very controlled conditions, using personnel who are trained in safety and security. The FAA's Special Agents carry their FAA credentials for immediate display if they are challenged in order to establish their authority to conduct such inspections. FAA Special Agents only inspect without local ID's when obtaining local media before the inspection would greatly reduce, or even negate, the purpose of the inspection. In other circumstances, the FAA representatives have the appropriate access and/or ID media.
Notice 97-12 proposed in Sec. 108.5(c) (Sec. 108.5(d) in the final rule) to require aircraft operators to issue identification and access media to FAA Special Agents upon their request and when they present FAA credentials issued by the Administrator. These media give Special Agents unescorted access to, and movement within, exclusive areas controlled by the aircraft operator. These exclusive areas may include portions of the airport secured area, SIDA, and AOA. While the FAA has the authority to inspect without local media, the FAA agrees that it is in the interest of security for all persons in the controlled areas to have locally issued or approved access and identification media. An undue number of different media makes the challenge system more difficult to carry out, and reduces the effectiveness of the challenge system. Therefore, the FAA's practice is for its agents to obtain local media when practicable. While the FAA rarely has had difficulty with the local authorities, there have been times when local authorities have resisted providing the media. This paragraph makes it clear that the aircraft operator is obligated to issue such media.
The FAA recognizes and concurs with the concerns that the number of people given unescorted access to the secured areas, SIDA's, and AOA's should be limited to those with a need to be there. For this reason, this particular provision is limited to FAA Special Agents. Other persons with inspection authority for other FAA programs may obtain limited access to perform their duties. Flight Standards Inspectors, for instance, may use their FAA Form 8000-39 to enable them to go to the aircraft that they intend to inspect or on which they intend to give a flight check. This authority is not the kind that Special Agents need to fully inspect secured areas, AOA's, and SIDA's. Therefore, this paragraph requires the aircraft operator only to give identification and access media to those individuals identified by the Administrator's Special Agent credentials.
The proposed rule stated that the media would be issued on request of the FAA Special Agent and presentation of his or her credentials. The final rule states that the media shall be issued upon request by the Administrator. As some commenters note, not all FAA Special Agents have duties and the type of training to conduct inspections at the airport, therefore, those agents do not need local media. The Administrator will provide the airport or aircraft operator with the names of Special Agents who require media.
The final rule states that the media shall be issued ``promptly.'' The FAA expects that the media will be issued without undue delay, generally within a similar timeframe that media are issued to airport, aircraft operator, and contractor employees who need the media. The particular procedures will be worked out at each airport with its FAA field office.
The FAA recognizes that, in most cases, it is important not to give unescorted access to those who have not had the specialized SIDA training required at that location. While all FAA Special Agents with the appropriate credentials have been given general training in access to and movement within the affected areas, each location has different layouts, ID media, and other systems. Accordingly, the final rule will provide that media are not issued to Special Agents until they complete the appropriate training, as stated in a security program. This practice will ensure that the agent is familiar with the procedures in place at that location, and will fully support the airport operator's and aircraft operator's training programs. Considering that the aircraft operator's procedures will be in an exclusive area agreement for the specific airport, the special procedures for issuing local media may be in either the airport or aircraft operator security program. These procedures will indicate when the training is given, including provisions for emergencies. In case of emergency, Special Agents may need the media without undergoing the full local SIDA training.
Section 108.7 Falsification
Proposal: The FAA proposed Sec. 108.7 with no changes from the current Sec. 108.4. The current section was adopted on November 27, 1996.
Comments: There were no comments on this section.
FAA response: Section 108.7 is not changed.
Section 108.9 Security Responsibilities of Employees and Other Persons
Proposal: The FAA proposed to prohibit persons from tampering or interfering with, compromising, or modifying any security system, or carrying a deadly or dangerous weapon, explosive, or incendiary into sterile areas, secured areas, or operations area.
Notice 97-12 proposed in Sec. 108.9(b) to prohibit any deadly or dangerous weapons, explosives, incendiaries, or other destructive substances on or about the individual's person or accessible property when entering secured areas or the air operations areas of an airport governed by part 107. Proposed Sec. 108.9(d) provided that this requirement would not apply to certain law enforcement personnel and other authorized persons.
Also proposed was the continuation of the current Sec. 107.25(f) provision that no person could allow to be used or cause to be used any airport-approved access medium or identification medium that authorized access for a person or vehicle in any area controlled for security purposes in any other manner than that for which it was issued.
Comments: Denver International Airport, AS, AA, CO, ATA, and RAA, recommend incorporating specific parts of the law that identify penalties. American Airlines, FedEx, UPS, ATA, and RAA support the concept but request a clear distinction between the individual's actions and the air carrier's actions and want a distinction between intentional and unintentional noncompliance. American Airlines, FedEx, ATA, NACA, and RAA recommend that any FAA action could be in addition to or in lieu of any action by the air carrier against its employee or contractor. Three commenters suggest that language be incorporated to prevent testing of security operations by unauthorized persons or those who present false credentials. United Express, AA, ATA, FedEx, and RAA, oppose re-screening of employees entering the sterile area, who have access clearance from the airport to enter secured areas. Alaska Airlines, AA, ATA, UPS, and RAA recommend removal of the reference to ``other destructive substance.''
FAA response: In response to the comment to place civil penalties into the final rule, the FAA recommends that those seeking more information on this topic, refer to part 13. Potential penalties are addressed in part 13, which are not normally added to each part of Title 14.
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Regarding the distinction between individual's actions and the aircraft operator's actions, it is not possible to state in the rule as to when enforcement action may be taken against just the individual, just the aircraft operator, or both. Aircraft operators are responsible for carrying out part 108 and their security program, which largely is done by making sure their employees, contractors, and agents carry them out. When an individual fails to do so, in each case the FAA will have to examine the facts and circumstances, and the parties' responsibilities under the statute, the regulations, and the security program, to determine what charges, if any, to bring against which persons. As to whether any FAA action would be in addition to, or in lieu of, any action by the aircraft operator, this determination also depends on the facts of each case.
The rule does not distinguish between intentional and unintentional noncompliance. However, it seems likely that in most cases, if a person violated Sec. 108.9 the act would be intentional. If it appears that the violation was not intentional, the FAA would consider whether no enforcement action, or a mitigated penalty, was warranted.
The FAA considered whether to prohibit unauthorized testing of any security system. Such a blanket prohibition would be unduly broad, however, considering the uncertainty of what might be meant by ``testing'' the system. Section 108.9 does, in fact, prohibit some actions that persons might take to test the system that would unduly interfere with the proper operation of an air carrier. Deliberately entering a secured area without proper access or identification media would be a violation, for instance, whether the person was testing the system or had another reason for doing so.
As to the proposed prohibition of weapons in the secured areas or AOA in Sec. 108.9(b), the FAA has determined that airport operators under Sec. 107.11 are able to handle such occurrences through their local laws that control the presence of weapons and other deadly items on airport property. The law enforcement personnel who respond to incidents as described in the airport operator's security program, enforce such local laws. Therefore, proposed Sec. 108.9(b) is not adopted. While the FAA will not take action at this time, it will continue to assess the need for any future comprehensive security enhancements regarding weapons and other destructive substances that may be detrimental to the flying public.
Section 108.9(d) (proposed Sec. 108.9(c)), provides that this section does not apply to the FAA, or to aircraft operators, airport operators, or foreign air carriers while conducting inspections in accordance with their security program. These entities are expected to check their own compliance with the regulations by testing the system. However, not every breach by an employee can be characterized properly as an inspection. The security program will set out a regulated party's plan for conducting such inspections, including who may do them.
The FAA has also determined that proposed Sec. 108.9(d), which indicates subsection (b) would not apply to persons authorized by the Federal government or the airport operator to carry weapons and other dangerous items on airport property, will also not be adopted. The FAA believes the local laws adequately address and recognize various persons who may have a need and the authority to carry weapons while on airport property. The FAA will also continue to assess these issues and address them as deemed appropriate in the future.
Subpart B--Security Program
Section 108.101 Adoption and Implementation
Proposal: In Secs. 108.1 and 108.101, Notice 97-12 proposed to extend the application of part 108 to private charter and helicopter operations, as well as those air carriers that voluntarily hold security programs.
Current part 108 applies only to airplane operators, and therefore, does not apply to helicopter operators, which are specifically excluded under current Sec. 108.1(b) and do not hold security programs. Current Sec. 108.5(a) makes part 108 applicable to scheduled and public charter operators only, not private charters. Section 108.5, paragraphs (a)(1) and (a)(2) require a full security program to be carried out for operations with more than 60 seats and for operations with any size airplane deplaning through a sterile area. Passengers enplaning from or deplaning into sterile areas from private charters and helicopter operations currently are subject to the security program requirements of other air carriers responsible for the security of that sterile area. In such a case, the helicopter operator or private charter does not take responsibility for the security of that sterile area under a security program.
Current Sec. 108.5(a)(3) requires some security procedures to be carried out for scheduled passenger and public charter operations with more than 30 but less than 61 seats, and requires the rest of the security program to be carried out if the FAA advises them that a threat exists. This practice is commonly called a ``partial program,'' because only part of the program routinely is carried out. Section 108.5(b) states that other certificate holders that have an approved security program shall carry out that program (commonly called a ``voluntary program''). Because the definition of ``certificate holder'' in current Sec. 108.3 includes only passenger operations, some commenters have questioned the current practice of certain all-cargo carriers adopting a security program under part 108.
Notice 97-12 proposed not limiting part 108 to airplane operations, but to apply the same security requirements to all aircraft depending on passenger seating configuration and kind of operation. It proposed in Sec. 108.101(a)(1) and (2) to require a full security program for scheduled and public charter operations with more than 60 seats, and for scheduled passenger and public charter operations with any size aircraft when enplaning from or deplaning into a sterile area. It proposed in Sec. 108.101(a)(3) to require a full security program to be carried out for private charter operations when passengers are enplaned from or deplaned into a sterile area.
Notice 97-12 proposed in Sec. 108.101(a)(4) to require a partial program for certain other scheduled, public charter, and private charter operations that do not enplane from or deplane into a sterile area. The operations include a private charter operation with an aircraft having a passenger seating configuration of more than 30 seats, a scheduled passenger or public charter operation with a passenger seating configuration of 31 to 60 seats, and a scheduled passenger, public charter, or private charter operation with a passenger seating configuration of less than 61 seats engaged in operations to, from, or outside of the United States.
In Sec. 108.101(b), Notice 97-12 proposed that each air carrier that has a security program for other operations, shall carry out that program. Because part 108 would not use the term ``certificate holder'' and would not otherwise omit all-cargo operations from part 108, this paragraph would clarify that all-cargo operations may be under a security program.
Comments: American Airlines, CO, NW, TWA, United Express (Great Lakes Aviation), UPS, ATA, RAA, and NACA state that private charter operations should not be subject to part 108 requirements. They note that there is no history of such operations creating a
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security problem. American Airlines, ATA, and TWA indicate that, if the FAA decides to regulate private charter operations under part 108, the only security requirement that is justified is the screening of passengers who deplane into a sterile area. The Regional Airline Association, UPS, and Era Aviation state that only screening of passengers who enplane from or deplane into a sterile area is justified. Continental Airlines does not object to screening passengers who enplane through a sterile area, but wishes to deplane private charter passengers into a sterile concourse. The NACA states that private charters should be able to escort passengers through the sterile area as an alternative to screening, and that there should be portions of the airport outside of the sterile area available for private charter enplaning and deplaning.
The City and County of Denver supports requiring private charter operations to have security programs, noting that an unscreened individual could deposit contraband for pick-up by another person or could return later himself or herself. This commenter states, ``with all of the technological advances and equipment being deployed, why would a private charter be allowed to compromise security?''
American Airlines, United Express, ATA, and RAA state (in their comments on proposed Sec. 108.9(b)) that the rules should not be interpreted to prevent ``reverse screening,'' that is, screening upon deplaning at major airports as opposed to before boarding small commuter aircraft.
Northwest Airlines opposes applying part 108 to helicopter operations. The Helicopter Association International (HAI) supports permitting rotorcraft operators who want to interline with larger air carriers the ability to hold a part 108 security program and enplane from and deplane into a sterile area. The HAI also states that airports should have a place outside of the sterile area where rotorcraft may operate.
The United Parcel Service, FedEx, AA, RAA, ATA, and the Cargo Airline Association (CAA) support allowing other air carriers to voluntarily adopt a security program. The United Parcel Service, FedEx, and CAA would like the FAA to clarify that the air carrier operating under a voluntary program is required to comply with its particular program, not with the entire regulation. Federal Express also requests clarification that the primary objective of such programs is to protect large passenger aircraft and the passengers on them. Some commenters suggest that including voluntary programs in Sec. 108.1 without a specific note that not all of part 108 applies to them, may imply that they must comply with the entire regulation.
The NACA recommends additional options for those aircraft operators conducting wet leases.
FAA response: Section 108.101(a)(1) in this final rule will maintain the current requirement in Sec. 108.5(a)(1) that all scheduled passenger and public charter operations using aircraft with a passenger seating configuration of more than 60 seats have and carry out a full security program. Section 108.101(a)(2), as proposed, requires a full program for scheduled passenger and public charter operations using aircraft with a passenger-seating configuration of less than 61 seats when passengers are enplaned from or deplaned into a sterile area. The FAA believes that preserving the integrity of the sterile area is critical for maintaining civil aviation security. Few additional security measures are applied to persons or property once they are in the sterile area. The FAA has determined, therefore, that it is essential that all persons who enter the sterile area be subject to security procedures, either by inspection of their person and property or by another means, such as verifying their status as an authorized aircraft operator employee or airport employee.
The FAA recognizes that the passengers in private charter operations have an affinity with each other, such as being on the same sports team and likely present little danger to one another. Permitting the passengers of private charter operations to enter the sterile area without being screened would compromise the sterile area. Screening persons entering the sterile area are intended not only to discover weapons, explosives, and incendiaries on individuals who intend to use them in a criminal manner, but also to find weapons carried by individuals with no criminal intent who forget they are carrying them. Each year at screening checkpoints, many weapons carried by such persons are prevented from entering the sterile area. If these weapons were brought into the sterile area, there is a risk that they could be used inappropriately by that person, or taken by another person and used. Any prohibited item that is introduced into the sterile area could be transferred to a scheduled or public charter flight. In addition, as Denver notes, an unscreened person on a private charter intentionally could transfer a weapon to another person, creating a danger to flights other than his or her own flight. For these reasons, the FAA continues to believe that all persons who enter the sterile area must be subject to security procedures.
Further, the FAA believes that aircraft operators that place passengers in the sterile area should be responsible for screening these passengers. Under part 108, this task is accomplished by the operator holding and carrying out a security program.
Accordingly, this final rule will require that all aircraft operators that enplane or deplane passengers through sterile areas, will be required to adopt and carry out a security program for those operations, regardless of the size or type of aircraft, or whether the flight is a scheduled, public charter, or private charter.
As to the type of aircraft being used, the FAA has found no reason to believe that there is any difference in the risk to air transportation depending on whether helicopters or airplanes are being operated. By changing the rule from applying to airplane operators to applying to aircraft operators, helicopter operators will be required to adopt and carry out a security program under the same circumstances as airplane operators. This practice will ensure that all operators of aircraft of the same passenger seating capacity and kind of operation maintain similar levels of security. Further, removing the exclusion of helicopters from part 108 that is in current Sec. 108.1(b) may assist helicopter operators to transfer passengers, checked baggage, and cargo to other aircraft operators, because they can carry out the necessary security procedures.
After further evaluation, the FAA has determined that there is no need to require security procedures for private charters other than as needed to protect a sterile area. As noted, private charters, by definition, involve groups of passengers who are closely affiliated, and present little danger to one another. The FAA agrees with the commenters that further regulation of private charters is not warranted because there is insufficient evidence that these passengers pose a danger to air transportation. The final rule in Sec. 108.101(b) requires private charter operators to have a security program (``Private Charter Program'') only if they enplane from or deplane into a sterile area. In that case, they need to carry out only the requirements related to protecting the sterile area.
Section 108.101(c)(2) will require scheduled and public charter operations using aircraft of less than 61 seats that operate to, from, or outside of the United States, and do not enplane from or deplane into a sterile area, to hold a ``Partial Program.'' The Partial Program
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requires the aircraft operator to carry out portions of the security program for all operations and to carry out the remainder when the FAA informs the operator that a threat exists. Because the performance, including flight range, of such aircraft has increased and the potential threat to U.S. interests outside of the country has increased since part 108 was adopted, some additional security measures should be carried out for such operations.
The rule language will be amended for all Partial Programs. Section 108.101(c)(1)-(2) of the final rule will address operations to which this applies. These operations include scheduled passenger or public charter that do not enplane from or deplane into a sterile area, when such an operation either (1) involves an aircraft having a passenger seating capacity of more than 30 and less than 61 seats, or (2) involves an aircraft having a passenger seating configuration of less than 61 seats and is engaged in operations to, from, or outside of the United States (or both). The security measures that must be carried out by such operations are included in Sec. 108.101(d). Section 108.101(d) will require the affected aircraft operators to comply with the requirements regarding security coordinators, law enforcement personnel, carriage of accessible weapons, carriage of prisoners, carriage of Federal Air Marshals, training, the contingency plan, bomb and air piracy threats, and security directives and information circulars. Section 108.101(d)(2) will require the aircraft operator to perform any other security measures that the FAA has approved upon request. This situation permits the aircraft operator to assume additional security responsibilities, such as exclusive areas. Section 108.101(d)(3) will require that aircraft operators implement the remainder of the security program requirements when the FAA informs them that a threat to that operation exists.
The FAA agrees that the final rule should not prohibit reverse screening. The FAA did not propose that reverse screening be eliminated. There are some operations that do no require screening for the flight itself, but the flight deplanes in a sterile area. This final rule will clarify that the operator of that flight must now have a security program. That program will include methods that the operator will use to ensure that passengers are not deplaned into the sterile area without having been screened.
The comments on providing other areas of the airport for enplaning and deplaning passengers, which would be located outside the sterile area, and the comments regarding special provisions for wet leases, are beyond the scope of Notice 97-12 and will not be addressed in this rulemaking.
Section 108.101(e) addresses ``voluntary programs'' for aircraft operators that are not required to have a security program but wish to have one to facilitate their operations. In response to comments, and after further evaluation, the final rule will provide further clarification. These programs will be referred to as ``Limited Programs'' in this final rule. The term ``voluntary'' might imply that the aircraft operator is not required to comply with the program. Although the aircraft operator is not required to adopt a ``Limited Program,'' once one is adopted, the aircraft operator is required to comply with it.
Typically, holders of Limited Programs are all-cargo carriers that are not required to have a security program because they do not carry passengers and do not use sterile areas. However, all-cargo carriers may wish to have an exclusive area on an airport, taking responsibility for the security of that area, which would leave the airport operator with less direct responsibility under part 107 for that particular area. Or they may choose to carry out certain security measures to facilitate the transfer of cargo to passenger carriers. Acquiring a security program allows the all-cargo operator to receive Security Directives from the FAA, which directly impact their operations.
The introductory text of Sec. 108.101(e) will clarify that the FAA may approve such programs; however, it is not required to do so. In each case, the FAA will evaluate all of the circumstances, including the security implications of the program and the ability of the aircraft operator to carry out the program, to determine whether security and the public interest warrant approval of the program. This introductory text also indicates that the FAA approves such programs only after a request by the aircraft operator. The FAA requires programs only for the aircraft operators included in Sec. 108.101(a), (b), and (c), and cannot require an aircraft operator to hold a security program under Sec. 108.101(e). This text also emphasizes that a security program may be approved for an aircraft operator that has a certificate under part 119. This provision is not intended to permit general aviation operators to have security programs under part 108. General aviation operators, if they are tenants on the airport and wish to have a security program, may request a tenant security program from the airport operator under part 107.
Section 108.101(e) will require that the aircraft operator shall carry out selected provisions of Subparts C and D, and Sec. 108.305, as specified in its security program. This section also will require that the aircraft operator shall adopt and carry out a security program that meets the applicable requirements of Sec. 108.103(c). This requirement emphasizes that the security program is used only to permit aircraft operators to take on existing security responsibilities that are set out in part 108. Voluntary programs are not used to impose completely new security responsibilities. In determining which sections to include, the FAA will consider which responsibilities the aircraft operator is accepting, and will include in the security program all necessary requirements. In all cases, the aircraft operator will be subject to Security Directives under Sec. 108.305 that relate to the responsibilities that operator is accepting.
Section 108.101(e) states that each aircraft operator that has adopted a security program under this paragraph shall carry out that program. Such an aircraft operator is not obligated to carry out other portions of part 108 that are not included in its security program. If an aircraft operator were to fail to carry out its program, the full range of actions would be available, including counseling, administrative action (warning notices and letters of correction), and civil penalties. In extreme cases, the FAA could withdraw approval of the security program.
The FAA believes, as a result of this final rule, that there will be aircraft operators who will encounter for the first time a need to apply for and implement a security program under part 108. A short explanation of the relationship between their security program and this final rule follows. The FAA is required to prescribe rules, as needed, to protect persons and property on aircraft against acts of criminal violence and aircraft piracy, and to prescribe rules for screening passengers and property for dangerous weapons, explosives, and destructive substances (see 49 U.S.C. 44901 through 44904).
To carry out the provisions of the statute, the FAA has adopted rules requiring aircraft operators to carry out various duties for civil aviation security. Title 14, Code of Federal Regulations, contains part 108, which is directed specifically toward aircraft operators. The part contains general requirements for promoting civil aviation security.
Aircraft operators, as required by Sec. 108.101, have a security program that
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is approved by the Administrator, containing information that specifies how they are to perform their regulatory and statutory responsibilities.
The security program contains sensitive security information and is available only to persons with the need-to-know. Each aircraft operator's security program is a comprehensive document that details the full range of security procedures and measures that they are required to perform under part 108. The program includes procedures for screening of passengers, carry-on baggage, checked baggage, and cargo; using screening devices (such as X-ray systems and metal detectors); controlling access to aircraft and aircraft operator facilities; reporting and responding to bomb threats, hijackings, and weapons discovered during screening; reporting and protecting bomb threat information; identifying special procedures required at airports with special security needs; and training and testing standards for crewmembers and security personnel.
Other security and information measures are contained in the Security Directives and Information Circulars, described in Sec. 108.305. These sources address threats to civil aviation security as well as responsive measures to those threats. Additionally, these sources provide sensitive information concerning various security devices, such as metal detectors and X-ray machines.
The security program is far more detailed than the regulations, therefore, there will be items specifically addressed in detail that may be mentioned only in general terms in the rule language of part 108. The security program, once approved, has the force of law and is to be adhered to the same as the part 108 regulations.
In addition to including private charter and helicopter operations, this final rule now applies to all-cargo operations that adopt and implement security programs as described in Sec. 108.101(e). Obtaining an approved security program permits these operators to enter into an exclusive area agreement with an airport operator in compliance with Sec. 107.111.
Section 108.103 Form, Content, and Availability
Proposal: The FAA proposed in Sec. 108.103 language describing the purpose of having air carrier security programs and described the requirements contained in Sec. 108.101 for those security programs. The FAA also proposed the means by which the air carrier would acknowledge receipt from the FAA of either a security program or amendment.
Part of the proposed requirements included procedures and a curriculum to implement an individual accountability compliance program. The FAA proposed that the aircraft operator would have penalties imposed on persons who were not abiding with the security requirements. Penalties were to be levied per the standards contained within the air carrier's approved security program.
The FAA also proposed to require that the air carrier designate an Air Carrier Security Coordinator (ACSC) and indicate the means by which this person can be contacted on a 24-hour basis.
The proposal also contained language to permit the air carrier to have the necessary documents available for electronic transmission from another location or to have the necessary documents onboard the aircraft.
In the final rule, the sections pertaining to these requirements have been clarified.
Comments: The United Parcel Service, the Denver Airport, and ATA, agree that individuals should be held accountable, but strongly object to delegating enforcement authority to the air carrier. They prefer that the FAA take responsibility for such action.
Northwest Airlines (NW), United Express, UPS, RAA, and ATA, support the creation of the position of an ACSC, but oppose the 24-hour contact requirement, unless the air carrier is permitted to name an alternate person to be designated in the ACSC's absence. Northwest Airlines, UPS, and RAA, suggest the use of the air carrier operations centers, which are available on a 24-hour basis. The ATA recommends the designation of an individual at the corporate level, rather than at each station. Alaska Airlines (AS) asks whether an air carrier can have several ACSC's, and states that the duties and position are not defined.
Northwest Airlines and UPS state that the preamble acknowledges that the air carrier may have the necessary documents available for electronic transmission from another location or onboard the aircraft, but proposed Secs. 108.103(c)(2) and (3) do not appear to include this allowance. The commenters believe that by using the word ``accessible,'' the regulation will convey more clearly the intent of the requirement.
The ATA and RAA urge that the FAA contact corporate headquarters to obtain implementing instructions. Additionally, RAA and UPS believe that the wording in Sec. 108.103(c)(2) could be interpreted as requiring an onsite copy of 14 CFR part 108.
FAA response: The FAA has reopened the comment period requesting additional comments on the issue of security compliance programs (64 FR 43322, August 10, 1999). The FAA has deleted the language in proposed Sec. 108.103(b)(11) and (c)(6) regarding security compliance programs. However, the omission of security compliance programs from the final rule does not stop an aircraft operator from voluntarily adopting a compliance program at any time.
The requirements regarding security programs and amendments are contained in Sec. 108.105.
In keeping with the changed language from ``certificate holder'' to ``aircraft operator'' the coordinator title has been changed to ``Aircraft Operator Security Coordinator (AOSC)''. Final rule language has been incorporated in Sec. 108.215(a) to allow for the designation of an alternate when the AOSC is absent. Also, Sec. 108.215(a) has been changed in the final rule to clarify that the AOSC, or any alternate, is to be designated at the corporate level, and shall serve as primary contact for security related activities and communications with the FAA.
Section 108.103(b) is intended to permit the aircraft operator to have the necessary documents available for electronic transmission from another location or the necessary documents onboard the aircraft. To require that aircraft operators have a copy of the security program accessible conveys the intent of the requirement. The FAA has amended Sec. 108.103(b) to require that each aircraft operator maintain an original copy of their security program at its corporate office. In addition, a complete copy, or the pertinent portions, of the aircraft operators' approved security program, or appropriate implementing instructions, should be accessible at each airport served. An electronic version of the program is adequate. The security program instructions may be site specific, and should be accessible at each airport location. The FAA agrees to change the word ``available'' to ``accessible'' in the final rule.
The purpose of having the security program or instructions accessible at each airport served is to ensure that personnel at each airport have the instructions on how to accomplish their security duties. The FAA checks compliance with this requirement by asking to see the instructions while at different airports. Asking for the instructions from corporate
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headquarters would not adequately check for compliance with this rule.
Section 108.105 Approval and Amendments
Proposal: The FAA proposed to slightly modify the time elements regarding the approval and the obtaining of amendments for security programs. Further, the FAA proposed to place time elements on itself, which before had not been contained in the regulation. Additionally, it proposed to revise the procedures making the processes consistent for both parts 107 and 108. Codification of the existing practice of the Assistant Administrator for Civil Aviation Security approving security programs and amendments was also proposed. Time elements for the submission and disposition of amendments were also included in the proposal.
Comments: Northwest Airlines, UPS, FedEx, TWA, and ATA do not agree to increase the FAA timeframe for amendment approval from the current requirement of 15 days. One commenter, RAA, opposes any change in the current amendment process and states that proposed Sec. 108.105(b)(1) and (2) appear to be inconsistent.
Two commenters, RAA and ATA, ask that the rule allow amendments to be approved for the air carrier and all similarly situated certificate holders.
FAA response: The FAA attempts to be realistic when determining timeframes needed to provide full consideration of all security issues. The FAA will process each amendment as quickly as possible. While it is the FAA's intent to meet the time elements listed within the regulation, it is incumbent on the FAA to take an appropriate amount of time to review all relevant issues affecting the requested amendment.
The final rule places in the regulation the existing practice of the Assistant Administrator for Civil Aviation Security, on behalf of the Administrator, issuing the approval for all security program amendments. In the final rules for parts 108 and 107, procedures for approval of security program amendments are identical.
The FAA believes there may be instances when proprietary information may be contained within the proposed amendment submitted by an aircraft operator. It is for this reason that the FAA has decided not to act on the recommendation submitted by the RAA and ATA. Section 108.105(b)(6) provides that any aircraft operator may submit a group proposal for an amendment that is on behalf of it and other aircraft operators that co-sign the amendment.
The FAA will establish internal procedures to periodically review amendments it initiates. The procedures will ensure that the amendment is in fact appropriately placed in the security program, as opposed to requiring an amendment to part 108. The FAA believes that the ASAC recommendation to include expiration dates on amendments, was directed toward the amendments issued by the FAA and not those amendments requested by aircraft operators. The FAA recognizes that there will be circumstances when information, due to its sensitivity, cannot be discussed in a public forum. In those instances, the amendment processes for security programs provide a means to impose and implement needed requirements.
The final rule will allow the FAA 45 days after receipt of a proposed amendment to approve or deny that amendment. The FAA maintains that the amendment process may take additional time if the proposed amendment is modified or denied.
In addition to retaining the 45-day submission requirement, the FAA will retain a 30-day timeframe for a FAA response to a proposed amendment. These timeframes do not address time requirements for emergency amendments issued by the FAA. The additional time required by the FAA is needed to complete the review process and to ensure a timely and efficient exchange of information. The exchange of information not only occurs between the FAA and the aircraft operator but between internal FAA offices as well. There are instances when threat analyses are needed, requiring additional time to process the requests. Therefore, the FAA has determined that it is necessary to retain the language as proposed in Notice 97-12.
The FAA has deleted the last sentence in proposed Sec. 108.105(b)(1) because it is unnecessary and confusing.
Subpart C--Operations
Section 108.201 Screening of Persons and Accessible Property
Proposal: The FAA proposed that the title and section number of current Sec. 108.9 ``Screening of passengers and property'' be changed to Sec. 108.201, ``Screening of persons and property, and acceptance of cargo.'' Air carriers currently are required to screen all persons entering a sterile area through a screening checkpoint. By changing the title, the FAA proposed to more accurately reflect that all persons, not just passengers, are required to be screened as they enter the sterile area through a screening checkpoint.
Further, to facilitate the transit of air carrier employees who have already been subjected to other security systems, the proposal provided that persons who are authorized unescorted access to a SIDA, may enter a sterile area from a public area using security procedures. These security procedures were proposed in Sec. 107.207, ``Access control systems'' under Notice 97-13 that revised part 107.
Proposed Sec. 108.201(b) would have required that the air carrier ``detect and prevent'' the carriage of any explosive, incendiary, deadly or dangerous weapon, or destructive substance on or about individuals or their accessible property aboard an aircraft or upon entry into a sterile area. This proposed language change was based on current procedures under the air carrier approved security programs which require that the air carrier ``detect and prevent'' or be subject to enforcement action.
The requirements proposed in Sec. 108.201(d), (e), and (f) would transfer unchanged from current Sec. 107.20 and Sec. 107.21. These current sections require that an individual submit to screening of their person and property, and restrict the carriage of firearms into sterile areas to those persons required to carry the weapons in performance of their duties. Those persons who are required to carry weapons in performance of their duties are generally law enforcement officers traveling armed aboard aircraft, and persons specifically authorized to do so under an approved security program. Since control of the sterile area, and performance of screening are the air carriers' responsibilities, these requirements are more appropriate to part 108 than to part 107.
Proposed Sec. 108.201(h) would have required that air carriers prevent the carriage of any explosive or incendiary onboard an aircraft. Although current security procedures applicable to the acceptance of cargo and checked baggage for transport onboard passenger aircraft are contained in the air carrier's standard security program, the basic requirement to apply security measures to cargo and checked baggage was not set out in detail in the current rule.
Comments: Trans World Airlines, RAA, and ATA oppose any modification of the requirement to screen passengers only. The RAA states that expanding the requirement to include all persons, could limit the air carrier's ability to provide access to the sterile area and may result in it having to limit access to sterile areas to ticketed passengers
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only (rather than to all persons) or to close a checkpoint when there are no departing flights.
Alaska Airlines, FedEx, UPS, United Express, CAA, RAA, and ATA state that the air carrier cannot ``detect'' introduction of deadly or dangerous items 100% of the time, they believe that ``deter'' should be substituted for ``detect'' in the General Requirements paragraph of Sec. 108.201. Federal Express, UPS, NACA, ATA, and RAA oppose any modification of the FAA requirement to rescreen employees. The NACA suggests that the following language be added ``* * * inspect each person entering a sterile area who does not have approved access media.''
FAA response: The screening of all who wish to enter a sterile area has been in effect, under Sec. 108.9 (c), for many years. All individuals, with limited exceptions, who enter the sterile area through the screening checkpoint must be screened.
Notice 97-12 proposed that each aircraft operator required to conduct screening, use the facilities, equipment, and procedures described in its security program to ``prevent or detect'' the carriage of any deadly or dangerous weapon, explosive, incendiary, or other destructive substance, on or about each person or the person's accessible property before boarding an aircraft or entering a sterile area. The current requirement in Sec. 108.9(a) is to ``prevent or deter.'' The FAA has decided to accept the commenters'' suggestion so the language in Sec. 108.201(a) remains ``prevent or deter.'' Both phrases adequately reflect the overall intent that aircraft operators must use the measures in their security programs to keep deadly or dangerous weapons, explosives, or incendiaries off the aircraft and out of the sterile area. Further, the phrase ``other destructive substances'' has been removed from the list of prohibited items.
The FAA does not agree with the suggestion to exempt from screening any employee who has been issued an identification medium who is entering a sterile area at a screening checkpoint. The FAA attempted such a system in the past and found that the security checkpoint was not equipped to handle the increased workload of checking ID's of employees. The aircraft operator may seek to have an alternate entry point at which employees can enter without being screened, but where other security measures are carried out.
As discussed above in the General Discussion of the Rule, the requirements that appeared in Sec. 108.201 of Notice 97-12 are now in separate sections. The sections that appear in the final rule are Sec. 108.201, ``Screening of persons and accessible property,'' Sec. 108.203, ``Acceptance and screening of checked baggage,'' and Sec. 108.205, ``Acceptance and screening of cargo.'' Requirements for acceptance and control of cargo and checked baggage that appeared in Notice 97-12 Sec. 108.219, ``Security of aircraft and facilities,'' now appear in either Sec. 108.203, ``Acceptance and screening of checked baggage,'' or Sec. 108.205, ``Acceptance and screening of cargo.''
Section 108.203 Acceptance and Screening of Checked Baggage
Proposal: Under the proposal, these requirements were contained in Sec. Sec. 108.201, 108.219(c), 108.213(b) and 108.225.
Comments: No comments were received.
FAA response: This section combines the requirements for checked baggage into one section. The language clarifies that although this section prohibits loaded firearms in checked baggage, as stated in Sec. 108.203(d)(4), this section does not prohibit the carriage of ammunition in checked baggage or in the same container as a firearm. It also refers to the additional requirements governing carriage of ammunition on aircraft in title 49 CFR part 175. The regulation refers to preventing or deterring ``unauthorized'' explosives or incendiaries. Some explosives or incendiaries may be shipped if they are labeled and marked in accordance with the Hazardous Materials Regulations. Any other materials either improperly packaged, marked, or labeled, or otherwise not permitted to be carried aboard passenger aircraft are ``unauthorized.''
Section 108.205 Acceptance and Screening of Cargo
Proposal: This section combines the requirements for transport of cargo into one section. Under the proposal, these requirements were contained in Sec. Sec. 108.201 and 108.219(c), (d) and (e). Although proposed Sec. 108.201 addressed screening of persons and property and acceptance of cargo, no specific mention of cargo appears in this section, it is referred to instead as ``property.''
Comments: The United Parcel Service, ATA, CAA, and RAA believe that a threat does not exist to justify expanding the requirements to cargo acceptance at all locations. It is their belief that the requirements should only apply to cargo accepted at the ticket counter. The United Parcel Service and RAA believe that the improvements to the Air Carrier Standard Security Program (ACSSP) that the FAA Cargo Baseline Working Group suggested, are sufficient and that there is no need to expand the regulation.
FAA response: Cargo acceptance is addressed in the security programs; the acceptance is not just limited to the ticket counter but addresses all cargo that may be transported onboard an aircraft that is transporting passengers. The inclusion of a section on cargo in the regulation does not impose any further regulations beyond those currently in the security program. The FAA disagrees that the only security threat exists with cargo accepted at the ticket counters. The final rule addresses all cargo regardless of where it was accepted. The final rule does not expand cargo security requirements beyond those already existing in security programs.
Section 108.207 Use of Metal Detection Devices
Proposal: Metal detection devices (MDD's) (such as walk-through metal detectors) have long been an integral part of the passenger screening system. Testing, calibration, and operational requirements for MDD's are currently incorporated in the air carrier's security program. The FAA proposed a new section that would require the air carrier to use equipment that meets the calibration standard set by the FAA, and to conduct screening with MDD's in accordance with its approved security program. This section would not change the current security program requirements.
Comments: No comments were received.
FAA response: There are no changes to the final rule language, except that the section is renumbered from Sec. 108.203 to Sec. 108.207.
The aircraft operator shall apply the FAA calibration standard set by the FAA to conduct screening with metal detection devices in accordance with the operator's security program. This application applies to all domestic locations and at those locations outside of the United States where the aircraft operator has operational control of its screening process.
Section 108.209 Use of X-ray Systems
Proposal: In the proposal, current Sec. 108.17 entitled ``Use of X-
ray systems'' was renumbered as proposed Sec. 108.205 and included under new Subpart C, ``Operations.'' In proposed Sec. 108.205, the FAA would update the technical standards for X-ray systems. The reference incorporating American Society for Testing and Materials (ASTM) Standard F-792-82 would be updated to reflect the current ASTM Standard, F-792-88 (re-approved with
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an amendment in 1993). In addition, references to the Food and Drug Administration regulations governing cabinet X-ray systems manufactured before April 25, 1974, are no longer necessary and, therefore, would be deleted.
Under this proposal, application of Sec. 108.205 would be extended to X-ray systems under the air carrier's operational control at airports outside the United States as currently required in security programs. The X-ray systems used for this purpose should meet the same standards as X-ray systems used to inspect baggage in the United States to ensure that the prescribed security measures are equally effective. The X-ray systems owned and/or operated by government authorities or government-mandated security companies at foreign airports and not under the operational control of the air carrier would not be subject to the proposed regulation.
Notice 97-12 proposed to delete the term ``passengers'' under Sec. 108.205(e) and substitute the term ``persons'' recognizing that, during daily operations, passengers are not the only category of individuals who enter a sterile area through a screening checkpoint with an X-ray system.
Additionally, in Notice 97-12, the FAA proposed to omit the requirement that the air carrier issue an individual dosimeter to each operator of an X-ray system.
Comments: Alaska Airlines, TWA, RAA, and ATA support deleting the dosimeter requirement. Alaska Airlines questions whether some of the new X-ray equipment does or will subject the items to more than one milloroentgen. The commenter believes that this requirement will confuse the public as to when film should be removed from items to be X-rayed.
FAA response: There are no substantive changes to the final rule language, except that the section is renumbered from proposed Sec. 108.205 to Sec. 108.209 in the final rule.
Most X-ray systems in use today emit less than one milloroentgen of radiation. The requirement to post a sign suggesting removal of all kinds of film applies only in those few situations where the equipment in use does emit more than one milloroentgen. Further this requirement is not new; it is in current Sec. 108.17(e).
The FAA is not aware of any incident in which a person received excessive radiation from X-ray machines used for screening under an FAA-approved program. Due to this safety record and encouraged by today's technology, which uses lower levels of radiation for this equipment, the final rule eliminates the need for dosimeters. Aircraft operators would still be required to comply with requirements of other Federal agencies or State governments regarding the use of dosimeters.
The final rule changes the reference from ``carry-on bags'' to ``accessible property,'' which is consistent with Sec. 108.201. At screening checkpoints, property that will be accessible in the sterile area or the aircraft or both are screened.
In the regulatory language, the FAA has removed the term ``dangerous articles.'' Instead, the FAA has inserted the words ``explosives, incendiaries, and deadly or dangerous weapons.'' The FAA believes the latter terms better describe the items for which the aircraft operators are carrying out the screening processes.
Section 108.211 Use of Explosives Detection Systems
Proposal: The FAA proposed renumbering current Sec. 108.20 entitled ``Use of Explosives Detection Systems'' as Sec. 108.207 and placing it in new Subpart C, ``Operations.''
Comments: No comments were received.
FAA response: In addition to the proposal, the FAA has added paragraph (b) due to the fact that explosive detection systems that use X-ray technology must comply with the requirements of Sec. 108.209(e) regarding posting of signs. While this new paragraph clarifies the requirements for the use of explosive detection systems, it does not add any new compliance costs, since the requirement for posting signs where X-ray screening equipment is used has long been in the regulations. Further, manufacturers have already provided the required information on the machines. In the final rule, proposed Sec. 108.207 is renumbered as Sec. 108.211.
Section 108.213 Employment Standards for Screening Personnel
Proposal: The FAA proposed to renumber Sec. 108.31 entitled, ``Employment standards for screening personnel'' to Sec. 108.209 and place it in new Subpart C, ``Operations.'' The proposal provided that, in the event the air carrier is unable to implement this section for screening functions outside the United States, the air carrier must notify the Administrator of those air carrier stations so affected, to facilitate resolution of compliance issues.
Comments: The Denver International Airport comments that the FAA standards should not preclude any local licensing requirements for security or guard personnel that are more stringent than the FAA requirements. They also state that security or guard personnel should be tested for the ability to speak English, by the FAA.
FAA response: In the final rule, proposed Sec. 108.209 is renumbered as Sec. 108.213 with no additional changes.
The FAA cannot categorically state that all local licensing requirements for security personnel either are or are not preempted by the Federal government and part 108. Each case must be decided on its facts and circumstances.
The aircraft operators are responsible for ensuring that personnel meet all requirements, including requirements as contained in this regulation. The FAA does not have the operational capability to test the large numbers of screeners who qualify each year.
Section 108.215 Security Coordinators
Proposal: Notice 97-12 proposed to consolidate Secs. 108.10 and 108.29, describing the duties and responsibilities of the Ground Security Coordinator (GSC) and the In-flight Coordinator, into one section. The FAA also proposed that the air carrier designate an Air Carrier Security Coordinator to ensure that the FAA had a security official to contact, at the corporate level, whenever the need arises.
Existing regulations provide for the GSC to immediately initiate corrective action for noncompliance with security regulations. At foreign airports, the air carrier may not be performing all security measures and may be unable to take corrective action. Therefore, Notice 97-12 proposed that when a host government agency or contractor provides security measures, the air carrier would notify the Administrator for assistance in resolving noncompliance issues. The Administrator could then work with the host government to address the issues.
The FAA also proposed to omit the distinction made in reference to ``direct employees'' versus ``contract employees.''
Comments: The United Parcel Service, FedEx, RAA, and ATA, state that ``daily'' requirements for GSC's should be replaced with ``routinely'' and that the wording ``departing flights'' should be added because many air carriers have late arrivals with no departure activity.
FAA response: Due to the change of terminology from ``air carrier'' to ``aircraft operator'' the FAA has determined that the new title of the proposed position will be changed to Aircraft Operator Security Coordinator (AOSC).
The Section-by-Section Analysis of Notice 97-12 explained the intent that
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the AOSC be appointed at the corporate level. This language has been added to Sec. 108.215(a) and clarifies that the AOSC is to be designated at the corporate level and shall serve as the primary contact for security-related activities and communications with the FAA. The FAA agrees with the need for the availability of an alternate AOSC to act in the AOSC's absence. The final rule requires that the alternate also shall be designated at the corporate level.
The FAA agrees with the comment regarding departing flights in connection with GSC duties. Therefore, in Sec. 108.215(b) the word ``departure'' was inserted after ``domestic and international flight.''
The FAA did not agree with the suggestion to change the frequency of performance for the GSC's duties. The commenter suggested that the frequency be changed from ``daily'' to ``routinely''. The FAA believes that the routine performance of these functions leaves the frequency up to the individual and would be open to misinterpretation; therefore, the language has not been changed.
It is inherent that the aircraft operator is responsible for managing any employees carrying out various security duties whether they are direct or contract employees. Therefore, the FAA omitted the distinction between ``employee'' and ``contract employee.''
Section 108.217 Law Enforcement Personnel
Proposal: As in the past, Notice 97-12 proposed that part 108 air carriers operating passenger service or public charter passenger operations at airports not governed under proposed Sec. 107.217 would be required, in the absence of the part 107 airport providing law enforcement support, to provide law enforcement personnel in a manner adequate to support its security program.
Comments: Commenters suggest using the term ``law enforcement officer'' or ``LEO,'' for consistency and providing a clear definition of ``LEO.'' These commenters also recommend that the rule make a clear distinction between a LEO and private security. The ATA and RAA suggest exempting non-scheduled charter operations from the requirement for law enforcement personnel.
FAA response: The FAA agrees that the term ``law enforcement officer'' should be used consistently throughout part 108. However, due to the allowances which are made for part 107, the term ``law enforcement personnel'' must be used in Sec. 108.217. This requirement is different than the requirements of Secs. 108.219 and 108.221 for the carriage of weapons and the escorting of prisoners. In those sections, the person is referred to as a ``law enforcement officer.'' In Secs. 108.219 and 108.221, the FAA is referring to someone who is a Federal law enforcement officer or a full-time municipal, county, or State law enforcement officer who is the direct employee of a government entity. The FAA has the authority to establish such requirements for persons desiring to board the aircraft armed.
The FAA recognizes the authority of State and local governments to grant police-like privileges to persons other than commissioned law enforcement officers. The FAA is aware of at least one state that grants such powers to personnel of private security companies. The statute specifically provides that airports may meet their obligation to provide law enforcement support by providing for ``qualified State, local, and private law enforcement personnel'' (49 U.S.C. 44903(c)).
In light of this situation, the FAA must provide airport operators with the ability to use either commissioned law enforcement officers or any other persons who have been granted the authority set out in 49 U.S.C. 44903(c) and in Sec. 107.217, by the State or local government, to react to specific situations as described in part 107.
Therefore, in both parts 107 and 108, the term ``law enforcement personnel'' is used to describe both the law enforcement officers and private persons who have been granted certain powers by the State or local government. An airport operator may use either type of personnel to meet the requirements of part 107. Training received by a security company employee, who is granted the appropriate authority by the State or local government, must be acceptable to the Administrator if the State or local jurisdiction does not prescribe training standards for them.
The FAA does not agree with the suggestion to exempt non-scheduled public charter operations from the requirement for law enforcement personnel. Depending on the size of aircraft used, the aircraft operator may need to screen passengers (Sec. 108.101(a)). Considering the incidents that can occur with screening (such as discovery of a weapon) it is important to have law enforcement support. For operators of smaller aircraft (Sec. 108.101(c)), it is important that employees know how to contact law enforcement support should that be needed (Sec. 108.217(a)(2)).
In the final rule, proposed Sec. 108.211 is renumbered as Sec. 108.217.
Section 108.219 Carriage of Accessible Weapons
Proposal: In Notice 97-12, Sec. 108.213, the FAA proposed a revised procedure for carrying weapons in the cabin by authorized law enforcement officers. This proposal was intended to provide criteria for the carriage of firearms and to control the number of firearms in the cabin. The control of weapons topic was the impetus for the creation of the ASAC Carriage of Weapons Task Force in January 1992. The proposal was based on the Task Force recommendations where consensus was reached at the time the recommendations were developed. The proposed rule contained regulatory language specifically identifying the need for law enforcement officers to have their weapons available during a flight.
Comments: A majority of the comments responding to Notice 97-12 address the carriage of firearms onboard an aircraft. One commenter strongly supports restricting the carriage of firearms onboard aircraft by anyone. Many commenters strongly support allowing all Federal agents to carry their authorized firearms on aircraft.
The Allied Pilots Association (APA) and ALPA do not support changes that would modify proposed Sec. 108.213(a)(2)(iv) to make it easier to board aircraft with firearms.
The most opposition to the restrictions came from U.S. Customs Service Agents. Many Customs agents, along with several other agents and officials from Federal agencies, recommend that all Federal agents authorized to carry firearms in the performance of their official duties be allowed to carry firearms onboard any aircraft. Furthermore, they believe that they should not be required to place firearms in checked baggage because of the greater risk of theft and consequent misuse of government-owned firearms.
Several commenters suggest that the FAA should not be in the position to restrict Federal LEOs from carrying their firearms onboard aircraft.
One commenter suggests that the proposed rule conflicts with 49 U.S.C. 46505. Another commenter notes that the authority to carry firearms is given to Federal agents by statute, therefore, it is inappropriate to limit by regulation.
One commenter proposes that Federal agents be allowed to carry their firearms in a locked container onboard or give their firearms to the captain prior to the flight. Another commenter opposes notifying ticket agents that LEOs are putting their firearms into the checked baggage system, which is not secure.
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Another commenter suggests that armed LEO's should be advised of the identity of all other armed LEO's onboard a flight.
FAA response: Final rule Sec. 108.219, which was proposed Sec. 108.213, received a majority of the total comments addressing Notice 97-12. Final rule Secs. 108.219-108.223 are revised, to some degree, based on comments received but continue to be structured largely from the recommendations of the Carriage of Weapons Task Force (CWTF) that has reviewed these issues since 1992.
The FAA has the authority and responsibility to ensure the safety and security of passengers within our national airspace system. The FAA has chosen, as one means of addressing that responsibility, to set controls on those persons who may carry a firearm in the cabin of an aircraft. The FAA has sought to meet the needs of law enforcement agencies.
One commenter suggests that the proposed rule conflicts with 49 U.S.C. 46505. Section 46505 provides for criminal penalties for persons who carry a concealed, accessible weapon. The criminal penalty does not apply to a law enforcement officer ``authorized to carry arms in an official capacity.'' This exception applies when the officer, in the performance of his or her duties, has a need to have the firearm accessible as defined in part 108.
It is the goal of both the FAA and the aviation industry to have as few weapons as possible carried onboard a flight. The FAA is aware that on a daily basis across the United States armed law enforcement officers board passenger carrying aircraft. The FAA recognizes the need for law enforcement officers to fly armed while in the performance of their duties, but has revised the rules to state more clearly when to permit this practice.
There appears to be a general misunderstanding by many commenters on the criteria necessary for flying armed, as detailed in the Notice. Neither this final rule nor the Notice limits the carriage of firearms to Federal agents. Likewise, neither this final rule nor the Notice limit the carriage of firearms specifically to the FBI. Federal agents and State and local officers who meet the criteria for law enforcement designation, regardless of the employing agency, may be permitted to fly armed for those duties as listed in this final rule.
This final rule clarifies FAA's very specific employment criteria needed for recognition as a law enforcement officer. Having met those criteria, having met the standards for a need to fly armed, and having received FAA's training program, the officer may, when permitted by the aircraft operator, fly armed.
The Notice provided a list of circumstances under which LEOs would be considered to have a need to travel armed as determined by the employing law enforcement agency.
New Sec. 108.219(a)(2) provides that the LEO must have a need to fly armed, as determined by the LEO's employing agency. Section 108.219(a)(2)(i) provides for an LEO to carry a weapon when he or she is on protective duty, for instance, assigned to a principal or advance team, or on travel required to be prepared to engage in a protective function. Section 108.219(a)(2)(ii) provides for the conduct of a hazardous surveillance operation.
New Sec. 108.219(a)(2)(iii) provides for carriage of weapons by an LEO who is on official travel required to report to another location, armed and prepared for duty. This includes reasonable allowances for de