Rule2025-00773
Recordkeeping Requirements for Criminal History Record Checks; Airport and Aircraft Operator Security; Technical Amendments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 15, 2025
Effective
January 15, 2025
Issuing agencies
Homeland Security DepartmentTransportation Security Administration
Abstract
The Transportation Security Administration (TSA) is issuing technical amendments to certain aviation security regulations. The technical amendments to the regulations clarify that airport operators and aircraft operators are required to retain only the criminal records, including the application for a criminal history records check (CHRC), associated with an individual's current CHRC, CHRC certification, or authorization to perform a covered function and not records associated with previous CHRCs or employment investigations. Also, the technical amendments clarify that the records may be stored in paper or electronic form.
Full Text
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<title>Federal Register, Volume 90 Issue 9 (Wednesday, January 15, 2025)</title>
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[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3716-3719]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-00773]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Parts 1542 and 1544
Recordkeeping Requirements for Criminal History Record Checks;
Airport and Aircraft Operator Security; Technical Amendments
AGENCY: Transportation Security Administration, Department of Homeland
Security (DHS).
ACTION: Final rule; technical amendments.
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SUMMARY: The Transportation Security Administration (TSA) is issuing
technical amendments to certain aviation security regulations. The
technical amendments to the regulations clarify that airport operators
and aircraft operators are required to retain only the criminal
records, including the application for a criminal history records check
(CHRC), associated with an individual's current CHRC, CHRC
certification, or authorization to perform a covered function and not
records associated with previous CHRCs or employment investigations.
Also, the technical amendments clarify that the records may be stored
in paper or electronic form.
DATES: This rule is effective as of January 15, 2025.
FOR FURTHER INFORMATION CONTACT: David Siegmund; Airport Security
Programs; Aviation Division; Policy, Plans, and Engagement; (571) 227-
4325; <a href="/cdn-cgi/l/email-protection#9ffbfee9f6fbb1ecf6faf8f2eaf1fbdfebecfeb1fbf7ecb1f8f0e9"><span class="__cf_email__" data-cfemail="abcfcaddc2cf85d8c2ceccc6dec5cfebdfd8ca85cfc3d885ccc4dd">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: You can find an electronic copy of this rule
using the internet by accessing the Government Publishing Office's web
page at <a href="https://www.govinfo.gov/app/collection/FR">https://www.govinfo.gov/app/collection/FR</a> to view the daily
published Federal Register edition or by accessing the Office of the
Federal Register's web page at <a href="https://www.federalregister.gov">https://www.federalregister.gov</a>. Copies
are also available by contacting the individual identified in the FOR
FURTHER INFORMATION CONTACT section.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires TSA to comply with small entity requests for information
and advice about compliance with statutes and regulations within TSA's
jurisdiction. Any small entity that has a question regarding this
document may contact the person listed in the FOR FURTHER INFORMATION
CONTACT section. Persons can obtain further information regarding
SBREFA on the Small Business Administration's web page at <a href="https://advocacy.sba.gov/resources/reference-library/sbrefa/">https://advocacy.sba.gov/resources/reference-library/sbrefa/</a>.
I. Discussion of the Rule
TSA is making technical amendments to regulatory recordkeeping
requirements related to CHRCs that workers for airport and aircraft
operators are required to undergo. Beginning in 1996, the FAA required
airport and aircraft operators to conduct employment investigations for
certain workers. Following the terrorist attacks on September 11, 2001,
the FAA determined that the employment investigations did not
adequately protect transportation security and published the CHRCs
final rule on December 6, 2001.\1\ The rule required the completion of
CHRCs for individuals with unescorted Security Identification Display
Area security functions such as screening of cargo or
[[Page 3717]]
accepting checked baggage for transport.\2\
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\1\ 66 FR 63474 (Dec. 6, 2001). FAA aviation security functions
were transferred to TSA under 67 FR 7939 (Feb. 20, 2002).
\2\ See also 49 CFR 1544.229 and 1544.330 (expanding CHRC
requirements to include flightcrew members).
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For airport operators, the current regulations require retention of
all employment history investigation files conducted before December 6,
2001, the fingerprint application and CHRC results conducted after
December 6, 2001, and any CHRC certifications received after December
6, 2001.\3\ For aircraft operators, the current regulations require
retention of employment history investigation files conducted before
December 6, 2001, and fingerprint application and CHRC results
conducted after December 6, 2001.\4\ The regulations also require
airport and aircraft operators to retain these records until 180 days
after the individual's access has expired or their authority to perform
a covered function is terminated.\5\
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\3\ See 49 CFR 1542.209(k)(1) through (3).
\4\ See 49 CFR 1544.229(k)(1) and (2).
\5\ See 49 CFR 1542.209(k)(5), 1544.229(k)(4).
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When these regulations were promulgated, airport and aircraft
operators were required to complete only one CHRC for covered
individuals.\6\ However, as a result of the terrorist attacks of
September 11, 2001, the modern threat environment, and TSA's risk-based
approach to aviation security, TSA has issued security program
amendments and security directives requiring airport and certain
aircraft operator workers to undergo recurrent CHRCs. For instance, TSA
required workers with unescorted access to airport Security
Identification Display Areas and sterile areas to complete CHRCs every
2 years, and then to participate in the Rap Back program. As a result
of the recurrent CHRC requirements and a strict reading of the
recordkeeping regulations, covered entities retain numerous copies of
CHRC applications and results. Retaining these records is burdensome
and costly. Moreover, TSA does not need prior CHRC applications and
results to assess compliance with the existing CHRC requirements.
Therefore, TSA is clarifying the existing regulations to state that
operators must retain only the records relating to the current CHRC.
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\6\ 66 FR 63474 (Dec. 6, 2001).
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For Sec. Sec. 1542.209 and 1544.229, the technical amendments
remove the date of December 6, 2001, and the requirements concerning
employment investigations that applied before that date in the rule
text because that language is no longer necessary. Also, the technical
amendments now include the phrase ``in electronic or paper form as
authorized by TSA'' to clarify that either hard copy or electronic
forms are permissible. When the regulation was originally published,
the primary means of record maintenance was in paper/hard copy, which
has changed over time to electronic document storage. TSA is adding the
phrase ``associated with the individual's current ID media, CHRC
certification, or authorization to perform a covered function'' to
clarify that only the current CHRC records must be retained. TSA is
revising the title of ``Certification'' to ``Certifications'' to
grammatically conform with other references to certifications in the
rule text. Finally, TSA is removing the phrase ``all investigations''
to more accurately reflect that airport and aircraft operators are only
required to preserve certain records.
For Sec. 1544.230, the technical amendments add the phrase ``[t]he
airport operator must maintain the following information associated
with an individual's current authorization to be a flightcrew member,
in electronic or paper form, as authorized by TSA.'' This change
clarifies that either hard copy or electronic forms are permissible and
that only the current CHRC records must be retained for flightcrew
records checks. The technical amendments also delete extraneous phrases
from Sec. 1544.230 so that the recordkeeping language is similar to
Sec. Sec. 1542.209 and 1544.229.
II. Good Cause and Procedural Rule Exceptions From Notice and Comment
and Delayed Effective Date
TSA is issuing this final rule change as a technical amendment
without a notice of proposed rulemaking or delayed effective date. The
Administrative Procedure Act authorizes agencies to forgo the notice
and comment requirements if it ``for good cause finds . . . that notice
and public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.'' 5 U.S.C. 553(b)(B); see also 5
U.S.C. 553(d)(3) (allowing agency to forgo a delayed effective date for
a substantive rule upon a finding of good cause).
TSA believes notice and comment concerning reducing the
recordkeeping requirements is unnecessary as it is a limited amendment
to reflect processes and security needs that have changed overtime. It
is unnecessary to seek notice and comment on the rule changes because
the new language imposes no new substantive burden and reflects current
security and compliance procedures. Further, it is unnecessary for the
rule to have a delayed effective date as the amendment merely reduces
recordkeeping requirements. Operators may continue to retain old
criminal applications and records but are not required to do so. For
these reasons, TSA believes that bypassing the ordinary notice and
comment procedure and the delayed effected date requirement is
justified in the totality of the circumstances.
In addition, 5 U.S.C. 553(b)(A) permits agencies to forgo notice
and comment when issuing ``rules of agency organization, procedure, or
practice,'' i.e., a procedural rule. ``A useful articulation of the
exemption's critical feature is that it covers agency actions that do
not themselves alter the rights or interests of parties, although it
may alter the manner in which the parties present themselves or their
viewpoints to the agency.'' \7\ The exemption ``preserve[s] agency
flexibility when dealing with limited situations where substantive
rights are not at stake.'' \8\ Here, TSA is removing a requirement to
retain the old CHRC records that were written when only one CHRC was
required. As a matter of agency procedure and practice, TSA does not
need to review old CHRC records and applications in order to assess an
operator's current compliance with the vetting regulations. In
addition, the delayed effective date requirements under 5 U.S.C. 553(d)
do not apply to procedural rules.
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\7\ Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980).
\8\ American Hospital Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C.
Cir. 1987).
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TSA is issuing these final rule changes through technical
amendments and not as a notice of proposed rulemaking. The technical
amendments reflect current Agency procedures and impose no new
substantive requirements. However, it is important to note that even if
these revisions were not considered technical amendments, they fall
within other exceptions to notice and comment under the Administrative
Procedure Act.\9\
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\9\ See 5 U.S.C. 551-559.
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III. Regulatory Analyses
A. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public, and under the
provisions of PRA section 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. This rule does not
call for a new collection of information under the PRA. CHRC
[[Page 3718]]
recordkeeping requirements are currently covered under Information
Collection Request 1652-002 (Airport Security Program). CHRC
recordkeeping burden estimates within the Information Collection
Request already align with CHRC recordkeeping clarifications identified
in the technical amendment and thus do not require revision at this
time.
B. Executive Orders 12866 and 13563 Assessment
Executive Orders 12866 (Regulatory Planning and Review), as amended
by Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review) direct agencies to assess
the costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
The OMB has not designated this rule a significant regulatory
action under section 3(f) of Executive Order 12866, as amended by
Executive Order 14094. Accordingly, OMB has not reviewed this
regulatory action.
This technical amendment clarifies CHRC recordkeeping requirements
which may result in cost savings associated with no longer retaining
old CHRCs and storing such records electronically. This technical
amendment does not impose any new substantive burden and reflects
current security and compliance procedures.
C. Regulatory Flexibility Analysis
The Regulatory Flexibility Act of 1980 (RFA) \10\ requires that
agencies consider the impacts of their rules on small entities. For
purposes of the RFA, small entities include small businesses, not-for-
profit organizations, and small governmental jurisdictions. The RFA's
regulatory flexibility analysis requirements apply only to those rules
for which an agency is required to publish a general notice of proposed
rulemaking pursuant to 5 U.S.C. 553 or any other law. See 5 U.S.C.
604(a). As discussed previously, TSA did not issue a notice of proposed
rulemaking for this action as exempted by 5 U.S.C. 553(b). Therefore, a
regulatory flexibility analysis is not required for this rule.
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\10\ Public Law 96-354 (94 Stat. 1164, Sept. 19, 1980), codified
at 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996 (SBREFA).
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D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-38, UMRA) requires each Federal agency to prepare a written
statement assessing the effects of any Federal mandate in a proposed
rule or final rule for which the agency published a proposed rule,
which includes any Federal mandate that may result in a $100 million or
more expenditure (adjusted annually for inflation) in any one year by
State, local, and tribal governments, in the aggregate, or by the
private sector.
Regulations are only reviewable under UMRA when an agency has
published a notice of proposed rulemaking as defined by 5 U.S.C.
553(b).\11\ This rule is exempted from notice and comment under 5
U.S.C. 553(b). TSA did not publish a notice of proposed rulemaking;
thus, this rule is exempt from UMRA's requirements pertaining to the
preparation of a written statement.
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\11\ See 2 U.S.C. 658(10); 5 U.S.C. 601(2).
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E. Executive Order 13132
Under Executive Order 13132 (Federalism), agencies must consider
whether a rule has federalism implications. TSA has determined that
this rule does not have federalism implications because it does not
create a substantial direct effect on States, on the relationship
between the National Government and States, or the distribution of
power and responsibilities among the various levels of government.
F. International Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
establishing any standards or engaging in related activities that
create unnecessary obstacles to the foreign commerce of the United
States. The Trade Agreement Act does not consider legitimate domestic
objectives, such as essential security, as unnecessary obstacles. The
statute also requires that international standards be considered, and
where appropriate, that they be the basis for U.S. standards. This
technical amendment will not have an adverse impact on international
trade.
G. Energy Impact Analysis
TSA assessed the energy impact of this action in accordance with
the Energy Policy and Conservation Act,\12\ and determined that this
technical amendment is not a major regulatory action under the
provisions of the Energy Policy and Conservation Act.
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\12\ As codified at 42 U.S.C. 6362.
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H. Environmental Analysis
TSA has reviewed this technical amendment for purposes of the
National Environmental Policy Act of 1969 \13\ and has determined that
this action will not have a significant effect on the human
environment. This action is covered by categorical exclusion numbers
A3(a) (for actions of a strictly administrative or procedural nature)
and (b) (that implement, without substantive change, statutory or
regulatory requirements) in DHS Management Directive 023-01 (formerly
Management Directive 5100.1), Environmental Planning Program, and
Instruction Manual 023-01-001-01, Rev. 1, which guides TSA compliance
with the National Environmental Policy Act.
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\13\ As codified at 42 U.S.C. 4321-4347.
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I. The Congressional Review Act
Before a rule can take effect, 5 U.S.C. 801, the Congressional
Review Act (CRA), requires agencies to submit the rule and a report
indicating whether it is a major rule to Congress and the Comptroller
General. Under 5 U.S.C. 804(3)(C), rules of agency organization,
procedure, or practice that do not substantially affect the rights or
obligations of non-agency parties are not considered to be a rule for
the purposes of the CRA. This technical amendment is a rule of agency
organization, procedure, or practice that will not substantially affect
the rights or obligations of non-agency parties, thus is not required
to be submitted for review under the CRA.
List of Subjects
49 CFR Part 1542
Airports, Aviation safety, Law enforcement officers, Reporting and
recordkeeping requirements, Security measures.
49 CFR Part 1544
Air carriers, Aircraft, Airmen, Airports, Aviation safety,
Explosives, Freight forwarders, Law enforcement officers, Reporting and
recordkeeping requirements, Security measures.
For the reasons stated in the preamble, the Transportation Security
Administration amends chapter XII, of title 49, Code of Federal
Regulations as follows:
PART 1542--AIRPORT SECURITY
0
1. The authority citation for part 1542 continues to read as follows:
[[Page 3719]]
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44913-44914, 44916-44917, 44935-44936, 44942, 46105.
0
2. Revise Sec. 1542.209(k) to read as follows:
Sec. 1542.209 Fingerprint-based criminal history records checks
(CHRC).
* * * * *
(k) Recordkeeping. The airport operator must maintain the following
information associated with an individual's current identification (ID)
media in electronic or paper form, as authorized by TSA:
(1) Fingerprint application. Except when the airport operator has
received a certification under paragraph (n) of this section, the
airport operator must physically maintain, control, and, as
appropriate, destroy the fingerprint application and the criminal
record. Only direct airport operator employees may carry out the
responsibility for maintaining, controlling, and destroying criminal
records.
(2) Certifications. The airport operator must maintain the
certifications provided under paragraph (n) of this section.
(3) Protection of records. The records required by this section
must be maintained in a manner that is acceptable to TSA and in a
manner that protects the confidentiality of the individual.
(4) Duration. The records identified in this section with regard to
an individual must be maintained until 180 days after the termination
of the individual's unescorted access authority. When files are no
longer maintained, the criminal record must be destroyed.
* * * * *
PART 1544--AIRCRAFT OPERATOR SECURITY: AIR CARRIERS AND COMMERCIAL
OPERATORS
0
3. The authority citation for part 1544 continues to read as follows:
Authority: 49 U.S.C. 114, 5103, 40113, 44901-44905, 44907,
44913-44914, 44916-44918, 44932, 44935-44936, 44942, 46105.
0
4. Revise Sec. 1544.229(k) to read as follows:
Sec. 1544.229 Fingerprint-based criminal history records checks
(CHRC): Unescorted access authority, authority to perform screening
functions, and authority to perform check baggage or cargo functions.
* * * * *
(k) Recordkeeping. The aircraft operator must maintain the
following information associated with an individual's current
identification (ID) media, CHRC certification, or authorization to
perform a covered function in electronic or paper form, as authorized
by TSA:
(1) Fingerprint application. The aircraft operator must physically
maintain, control, and, as appropriate, destroy the fingerprint
application and the criminal record. Only direct aircraft operator
employees may carry out the responsibility for maintaining,
controlling, and destroying criminal records.
(2) Protection of records. The records required by this section
must be maintained in a manner that is acceptable to TSA and in a
manner that protects the confidentiality of the individual.
(3) Duration. The records identified in this section with regard to
an individual must be maintained until 180 days after the termination
of the individual's authority to perform a covered function. When files
are no longer maintained, the criminal record must be destroyed.
* * * * *
0
5. Revise Sec. 1544.230(h) to read as follows:
Sec. 1544.230 Fingerprint-based criminal history records checks
(CHRC): Flightcrew members.
* * * * *
(h) Recordkeeping. The aircraft operator must maintain the
following information associated with a current authorization to be a
flightcrew member, in electronic or paper form, as authorized by TSA:
(1) Fingerprint application process. The aircraft operator must
physically maintain, control, and, as appropriate, destroy the
fingerprint application and the criminal record. Only direct aircraft
operator employees may carry out the responsibility for maintaining,
controlling, and destroying criminal records.
(2) Protection of records. The records required by this section
must be maintained by the aircraft operator in a manner that is
acceptable to TSA and in a manner that protects the confidentiality of
the individual.
(3) Duration. The records identified in this section with regard to
an individual must be made available upon request by TSA and maintained
until 180 days after the termination of the individual's privileges to
perform flightcrew member duties with the aircraft operator. When files
are no longer maintained, the criminal record must be destroyed.
* * * * *
Dated: January 10, 2025.
David P. Pekoske,
Administrator.
[FR Doc. 2025-00773 Filed 1-14-25; 8:45 am]
BILLING CODE 9110-05-P
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