[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]
[[Page 66287]]
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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.
[[Page 66289]]
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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