Recordkeeping Requirements for Criminal History Record Checks; Airport and Aircraft Operator Security; Technical Amendments

<RULE> DEPARTMENT OF HOMELAND SECURITY <SUBAGY>Transportation Security Administration</SUBAGY> <CFR>49 CFR Parts 1542 and 1544</CFR> <SUBJECT>Recordkeeping Requirements for Criminal History Record Checks; Airport and Aircraft Operator Security; Technical Amendments</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Transportation Security Administration, Department of Homeland Security (DHS). <HD SOURCE="HED">ACTION:</HD> Final rule; technical amendments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective as of January 15, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> David Siegmund; Airport Security Programs; Aviation Division; Policy, Plans, and Engagement; (571) 227-4325; <E T="03">david.siegmund@tsa.dhs.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> You can find an electronic copy of this rule using the internet by accessing the Government Publishing Office's web page at <E T="03">https://www.govinfo.gov/app/collection/FR</E> to view the daily published <E T="04">Federal Register</E> edition or by accessing the Office of the Federal Register's web page at <E T="03">https://www.federalregister.gov.</E> Copies are also available by contacting the individual identified in the <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. <HD SOURCE="HD1">Small Entity Inquiries</HD> 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 <E T="02">FOR FURTHER INFORMATION CONTACT</E> section. Persons can obtain further information regarding SBREFA on the Small Business Administration's web page at <E T="03">https://advocacy.sba.gov/resources/reference-library/sbrefa/.</E> <HD SOURCE="HD1">I. Discussion of the Rule</HD> 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. <SU>1</SU> <FTREF/> The rule required the completion of CHRCs for individuals with unescorted Security Identification Display Area security functions such as screening of cargo or accepting checked baggage for transport. <SU>2</SU> <FTREF/> <FTNT> <SU>1</SU>  66 FR 63474 (Dec. 6, 2001). FAA aviation security functions were transferred to TSA under 67 FR 7939 (Feb. 20, 2002). </FTNT> <FTNT> <SU>2</SU>   <E T="03">See also</E> 49 CFR 1544.229 and 1544.330 (expanding CHRC requirements to include flightcrew members). </FTNT> 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. <SU>3</SU> <FTREF/> 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. <SU>4</SU> <FTREF/> 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. <SU>5</SU> <FTREF/> <FTNT> <SU>3</SU>   <E T="03">See</E> 49 CFR 1542.209(k)(1) through (3). </FTNT> <FTNT> <SU>4</SU>   <E T="03">See</E> 49 CFR 1544.229(k)(1) and (2). </FTNT> <FTNT> <SU>5</SU>   <E T="03">See</E> 49 CFR 1542.209(k)(5), 1544.229(k)(4). </FTNT> When these regulations were promulgated, airport and aircraft operators were required to complete only one CHRC for covered individuals. <SU>6</SU> <FTREF/> 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. <FTNT> <SU>6</SU>  66 FR 63474 (Dec. 6, 2001). </FTNT> For §§ 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 § 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 § 1544.230 so that the recordkeeping language is similar to §§ 1542.209 and 1544.229. <HD SOURCE="HD1">II. Good Cause and Procedural Rule Exceptions From Notice and Comment and Delayed Effective Date</HD> 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); <E T="03">see also</E> 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,” <E T="03">i.e.,</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.”  <SU>7</SU> <FTREF/> The exemption “preserve[s] agency flexibility when dealing with limited situations where substantive rights are not at stake.”  <SU>8</SU> <FTREF/> 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 pra ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 24k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━