By Stephen P. Prentice
One of the fallouts of the Sept. 11 attack on the World Trade Center is now a mandatory requirement for fingerprint-based criminal history record checks in the airline industry. Your fingerprints will be or have been taken and sent to the FBI for processing. If you are employed in a SIDA (security identification display area) by working on the flight line or other covered areas, and/or have unescorted access authority, you may have been examined and fingerprinted already. The law requires that these fingerprint-based 10-year criminal history checks be accomplished by Dec. 6, 2002. No one can retain his or her unescorted access authority unless the person has been subjected to a fingerprint-based criminal record check for unescorted access authority on or before Dec. 6, 2002. This same rule applies to flight deck crews as well as most mechanics and of course the bag screeners.
New fingerprint-based criminal history checks are mandated by the Transportation Security Administration (49 CFR 1544.229). This is the new agency that now has acquired all security oversight from the FAA and has published the former FAA security regulations as its own and added others that govern aviation security.
The takeover of the FAA security functions became effective on Feb. 17, 2002. On that date all of the civil aviation security functions and responsibilities formerly performed by the FAA were transferred to the Transportation Security Administration (TSA). Get used to it. It is much bigger than FAA can ever be!
The Aviation and Transportation Security Act (ATSA) provided the mandate for this takeover by the TSA in addition to many other functions. ATSA was enacted on Nov. 19, 2001, shortly after the Sept. 11 attack.
The security mandate under this law is huge.
49 CFR 1544.229
Fingerprint-based criminal history records checks (CHRC) include unescorted access authority, authority to perform screening functions, and authority to perform checked baggage or cargo functions.
It soon becomes clear that just about anyone on the airport in an aircraft employment function can be included in the requirement for fingerprinting and records check. There are few exceptions.
I have been informed that some flight line mechanics and others have been summarily terminated under this rule. Certainly more will come as the various operators fully implement the fingerprint and criminal record check.
The companion part of this law is what happens when any one of a laundry list of criminal violations are found. Here is a partial listing of the offenses, that, if found, require immediate suspension or termination. Remember, there is a 10-year record check.
49 CFR 1544.229d
disqualifying criminal offenses
The disqualifying offenses are generally of the felony type but can include misdemeanors if they are "aggravated." The following list highlights many but not all of the offenses included:
1. Forgery of certificates, false marking of aircraft, registration violations
2. Interference with air navigation
3. Improper transportation of hazmat
4. Aircraft piracy
5. Interference with flight crew
6. Crimes on board an aircraft
7. Carrying weapon or explosive on board aircraft
8. Conveying false information and threats
9. Lighting violations involving transporting controlled substances
10. Unlawful entry into secure area (aircraft, airport)
11. Destruction of aircraft
12. Murder, sedition, kidnapping, or hostage taking
13. Aggravated sexual abuse
16. Distribution or intent to distribute controlled substance
17. Most felonies
18. Dishonesty, fraud, or misrepresentation
19. Possession of stolen property
20. Aggravated assault
21. Possession of controlled substance punishable by one year in prison
Note: Marijuana violations and other controlled substances violations are included in this laundry list.
10-year check, what happens?
If your criminal records check comes back with any of the above (and or some others) you are in trouble! Further, the record need not indicate a conviction. A mere arrest is enough to trigger the necessity for your removal from covered areas until an explanation or further disposition of your case has been documented. For a new employee, if there was no further action on your arrest or if the disposition did not result in a conviction or in a finding of not guilty by reason of insanity of one of the listed offenses, then the individual is not disqualified under the regulation. However, for someone already employed, if a records check reveals any disqualifying criminal offense without indicating what happened (dismissal, not guilty, etc.) then the company must suspend that individual’s authority to perform covered functions. In some cases termination may be the result.
What you can do
You can of course contact the court concerned and seek some sort of corrective action. This assumes of course that there might have been some sort of mixup or mistake. There is a procedure to correct the record if there is clearly a mistake as to your arrest or conviction. You should also notify your employer in writing of your intent to correct the information you believe is incorrect. Keep in mind also that most misdemeanors can be expunged via a motion to the court and many felonies can be reduced to misdemeanors after a certain amount of time. You should consult with a local criminal defense lawyer if you are caught up in this problem.
If you suspect a problem with your background, keep in mind that you can, through various commercial means, obtain a copy of any criminal record you suspect may still be outstanding against your name. Consulting with a criminal defense lawyer is your best bet. Armed in advance with what may pop up in a criminal record check by the FBI, you will be better equipped to handle a response to correct or modify a record. Keep in mind also that FBI files may not include records of offenses that you may find locally. There are instances where local offenses did not find their way into the general records of the FBI.
If you have not been fingerprinted yet you will soon note that at the time of fingerprinting, any aircraft operator (air carrier) must provide you a form that includes the following:
1. A complete listing of the disqualifying criminal offenses.
2. A statement (that you must sign) saying you have not been arrested or convicted for any of the offenses.
3. A statement that you have a continuing obligation to notify and disclose to your employer within 24 hours any conviction.
4. A further declaration as follows: "The information I have provided on this application is true, complete, and correct to the best of my knowledge and belief and is provided in good faith. I understand that a knowing and false statement on this application can be punished by fine or imprisonment or both (18 USC 1001)."
The company will state that any criminal record received from the FBI will be provided to the applicant, but you must request the same in writing.
The aviation security rules in general apply to the operations of scheduled (FAR 119) air carrier operations, and public and private charter operations, including operations of aircraft with a takeoff weight of 12,500 pounds or more. This weight limitation was recently increased to 95,000 pounds.
This means that any charter operator hauling large groups of people like baseball teams will soon have to comply with the security rules, as written and amended.
Due to pressure from the charter aircraft industry a recent modification pushed back the application of the new regulations to charters from Aug. 19, 2002 to Oct. 18, 2002. Furthermore, the regulations will now only apply to aircraft weighing 95,000 pounds or more and hired for flights not advertised to the general public (non common carriage). The regulations will apply mostly to sports teams, bands, and various corporations who operate aircraft over 95,000 pounds. The goal here was to make private charter flights meet the same regulatory requirements as commercial flights because the threats are considered to be identical.
Security czar, program, and manual
All of the regulatory requirements of the TSA must be managed by a security department following a program approved by the TSA authorities. A security czar with an appropriate department must be established by any operator covered by the regulations. In addition, a security operations manual must be prepared outlining the details of a long list of procedures to enhance internal security at the operator’s facilities.
The company security czar will have an official title of aircraft operator security coordinator (AOSC) and must be appointed at the corporate level. This person will be the point of contact for the TSA for all security-related activities and communications that are required by the company manual and relevant TSA regulations. This person must be available on a seven-day, 24-hour basis. In addition, a second employee must be designated as the ground security coordinator for each domestic and or international flight departure and carry out the duties described in the operator’s security program as outlined in the company security manual. This person will have many daily duties that include:
1. Review of all applicable security-related functions
2. Initiate immediate corrective action for any non-compliance
A third person must also be designated by the company who is called the in-flight security coordinator. This person will typically be the pilot in command of the aircraft. His added duties will be as described in the company security program contained in the security operations manual.
Now that we have had this brief view of the new security regulations we can only wonder where it will all end.
Stephen P. Prentice is an attorney whose practice involves FAA-NTSB issues. He has an Airframe and Powerplant certificate and is an ATP rated pilot. He worked with Western Airlines and the Allison Division of GMC in Latin America, servicing commercial and military overhaul activities and is a USAF veteran.
For additional information on 49 CFR 1544.229,
you can visit the TSA website at www.tsa.gov.