[Federal Register Volume 89, Number 158 (Thursday, August 15, 2024)]
[Rules and Regulations]
[Pages 66287-66289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18282]



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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1540


Air Cargo Security Threat Assessments; Technical Amendment

AGENCY: Transportation Security Administration, DHS.

ACTION: Final rule, technical amendment.

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SUMMARY: The Transportation Security Administration (TSA) is issuing 
this technical amendment to the air cargo security threat assessment 
procedures to correct a technical oversight that limited the type of 
immigration information noncitizens may submit as part of the 
immigration vetting process.

DATES:  This rule is effective as of August 15, 2024.

FOR FURTHER INFORMATION CONTACT: Ronoy Varghese, Policy Analyst, Air 
Cargo, Policy, Plans and Engagement, Transportation Security 
Administration, 6595 Springfield Center Drive, Springfield, VA 20598; 
telephone: (571) 227-2230; email: [email protected].

SUPPLEMENTARY INFORMATION: You can find an electronic copy of this rule 
using the internet by accessing the Government Publishing Office's web 
page at https://www.govinfo.gov/app/collection/FR to view the daily 
published Federal Register edition or by accessing the Office of the 
Federal Register's web page at https://www.federalregister.gov. 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 https://advocacy.sba.gov/resources/reference-library/sbrefa/.

I. Discussion of the Rule

    This technical amendment revises 49 CFR 1540.203(c)(8) to correct a 
technical oversight that limited the type of information prospective 
noncitizen \1\ air cargo workers and other individuals with access to 
cargo could submit when applying for a security threat assessment 
(STA). As described in the Air Cargo Screening Interim Final Rule, 74 
FR 47672 (Sept. 16, 2009), the procedures for the STA are codified in 
49 CFR part 1540, subpart C. Section 1540.203 requires all applicants 
to submit certain biographic information to TSA to conduct the STA.\2\
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    \1\ For purposes of this discussion, TSA uses the term 
``noncitizen'' to be synonymous with the term ``alien'' as it is 
used in the Immigration and Nationality Act (``INA'' or ``Act''). 
See INA 101(a)(3), 8 U.S.C. 1101(a)(3); Barton v. Barr, 140 S. Ct. 
1442, 1446 n.2 (2020).
    \2\ This information is used to conduct multiple checks as part 
of the STA process, including intelligence-related checks and 
confirming an applicant's identity. See 49 CFR 1540.205.
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    Paragraph 1540.203(c)(8) requires noncitizens to submit an Alien 
Registration Number (ARN) that TSA uses to access the pertinent 
immigration databases. TSA must have this information, or other 
appropriate identifying documents and information, to complete the 
immigration portion of the STA. Because there are other documents and 
information in addition to an ARN that noncitizens may possess that TSA 
can use to complete the vetting process, it is unnecessary to limit the 
acceptable documents to the ARN.
    For example, applicants may use the Form I-551, Permanent Resident 
Card; a foreign passport containing a Form I-551 stamp; and certain 
categories of Form I-766, Employment Authorization Document. Also, 
applicants may have Customs and Border Protection (CBP) Form I-94 
Arrival/Departure Record information that TSA can use to access the 
database. Note that noncitizens in the U.S. no longer need to complete 
a paper CBP Form I-94, but can access their Form I-94 online and 
provide it to employers, schools/universities, or government agencies 
as needed. (CBP encourages travelers to retrieve their arrival/
departure information automatically from the CBP I-94 website, 
available at https://i94.cbp.dhs.gov/I94/#/home.)
    Limiting the information noncitizens may submit to only an ARN 
prevents individuals who possess other appropriate documents and 
information from applying for the STA. This was an oversight in the 
rule drafting phase that TSA now corrects through this technical 
amendment.
    This technical amendment does not alter the immigration standard 
established under part 1540.203, but rather allows eligible individuals 
to submit other official and legitimate documents and information to 
complete the STA. TSA is amending the application form to clarify the 
documents and information that an applicant may submit to TSA to 
complete the immigration portion of the STA. TSA will maintain a list 
of documents on its website that noncitizen applicants may submit as 
part of the vetting process to facilitate an immigration check.

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 (APA) 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 the submission of 
additional immigration documents is unnecessary as it is a limited, 
insubstantial amendment meant to correct a drafting oversight. It is 
unnecessary to seek notice and comment on the rule changes because the 
new language imposes no new substantive burden and corrects an 
oversight in drafting. Further, it is unnecessary for the rule to have 
a delayed effective date as the amendment merely expands the types of 
documents and information an applicant may provide when applying for an 
STA and is not a substantive change to the rule. 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.'' \3\ The exemption ``preserve[s] agency 
flexibility when dealing with limited situations where substantive

[[Page 66288]]

rights are not at stake.'' \4\ Here, TSA is correcting an oversight in 
drafting that relates solely to forms of evidence before the agency. As 
a matter of agency procedure and practice, TSA is allowing noncitizens 
to submit additional available and acceptable records in their 
possession that TSA can use in the vetting process to facilitate an 
immigration check. In addition, the delayed effective date requirements 
under 5 U.S.C. 553(d) do not apply to procedural rules.
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    \3\ Batterton v. Marshall, 648 F.2d 694, 707 (D.C. Cir. 1980).
    \4\ American Hospital Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. 
Cir. 1987).
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III. Regulatory Analyses

A. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (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 44 U.S.C. 3507(d), obtain approval from 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 Paperwork Reduction Act of 1995.

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 Office of Management and Budget (OMB) has not designated this 
technical amendment 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 reduces the regulatory burden on noncitizens by 
revising 49 CFR 1540.203(c)(8) to consider additional information and 
documents that STA applicants can submit to TSA to conduct its 
immigration check. This technical amendment does not create or change 
any substantive requirements.

C. Regulatory Flexibility Assessment

    The Regulatory Flexibility Act of 1980 (RFA) \5\ 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. Individuals 
and States are not included in the definition of a small entity. 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, DHS 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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    \5\ 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).\6\ 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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    \6\ 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 (EPCA),\7\ and determined that 
this technical amendment is not a major regulatory action under the 
provisions of the EPCA.
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    \7\ 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 (NEPA) \8\ 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 NEPA.
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    \8\ 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, 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 Congressional Review Act. 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.

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List of Subjects in 49 CFR Part 1540

    Air carriers, Airports, Aviation safety, Security measures.

    For the reasons stated in the preamble, the Transportation Security 
Administration amends 49 CFR part 1540 as follows:

PART 1540--CIVIL AVIATION SECURITY: GENERAL RULES

0
1. The general authority citation for part 1540 continues to read as 
follows:

    Authority:  49 U.S.C. 114, 5103, 40113, 44901-44907, 44913-
44914, 44916-44918, 44925, 44935-44936, 44942, 46105.


0
2. Amend Sec.  1540.203 by revising paragraph (c)(8) to read as 
follows:


Sec.  1540.203   Security threat assessment.

* * * * *
    (c) * * *
    (8) If the applicant is not a U.S. citizen, the applicant's Alien 
Registration Number; a Form I-94 Arrival and Departure record 
containing an I-94 number; or other document as authorized by TSA and 
listed on the TSA website as permissible for this purpose.
* * * * *

    Dated: August 8, 2024.
David P. Pekoske,
Administrator.
[FR Doc. 2024-18282 Filed 8-14-24; 8:45 am]
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