Temporary Exemption of Certain Aircraft Operator Security Standards, 53980-53982 [2021-21190]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Transportation Security Administration

[Federal Register Volume 86, Number 186 (Wednesday, September 29, 2021)]
[Notices]
[Pages 53980-53982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21190]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration


Temporary Exemption of Certain Aircraft Operator Security 
Standards

AGENCY: Transportation Security Administration, DHS.

ACTION: Notice.

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SUMMARY: In this Notice, TSA issues an exemption from the requirements 
to regulated domestic aircraft operators that comply with the measures 
described in the exemption. TSA determines it is in the public interest 
to minimize or eliminate duplicate criminal history records checks 
(CHRC) for individuals who work for multiple employers at an airport. 
All other provisions continue to apply to regulated aircraft operators, 
their employees, and their authorized representatives.

DATES: This exemption becomes effective on September 29, 2021, and 
remains in effect until modified or rescinded by TSA through a notice 
published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Eric Byczynski, Airport Security 
Programs, Aviation Division, Policy, Plans, and Engagement; 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

Aviation Security

    TSA administers a comprehensive regulatory program governing 
aviation security, including standards for domestic airports, domestic 
aircraft operators, and foreign air carriers. The security requirements 
for domestic aircraft operators are codified at 49 CFR

[[Page 53981]]

part 1544 and include minimum standards for (1) the protection of the 
aircraft and related facilities; (2) acceptance and screening of cargo; 
(3) use of law enforcement personnel and the transport of Federal Air 
Marshals; (4) flight deck privileges; (5) training of individuals 
engaged in security functions; (6) carriage of accessible weapons; (7) 
access to cargo and cargo screening; (8) security threat assessments 
(STAs) and CHRCs; (9) airport-approved identification systems; and (10) 
the known shipper program. Also, in accordance with part 1544, aircraft 
operators must develop and follow TSA-approved security programs,\1\ 
and comply with Security Directives issued by TSA.
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    \1\ See 49 CFR part 1544, subpart B.
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    The nature of aviation operations at commercial airports requires 
aircraft operators to share space and workers with other airlines. For 
instance, an aircraft may traverse several airports in a day, and the 
aircraft operator needs individuals at each airport to assist with 
typical operations, including aircraft movement, loading, and 
unloading; screening and accepting cargo or checked baggage for 
transport; or supervisory tasks related to these functions. The 
majority of these individuals work in the airport Security 
Identification Display Area (SIDA), but some may also work in the 
airport Sterile Area.\2\ It is not economical or efficient for an 
aircraft operator to hire direct employees to work at all airports 
where it has flights, or for individuals to work only for that aircraft 
operator. The aircraft operator may have very few flights at an 
airport, and consequently employees would not have a full day's work if 
limited to working only for that aircraft operator. Some of the 
individuals who work in the SIDA for an aircraft operator may be full-
time employees, but the vast majority are ``authorized 
representatives'' of multiple aircraft operators. An ``authorized 
representative'' is a person who is not a direct employee of the 
aircraft operator, but is authorized to carry out operational and 
regulatory functions, such as loading or unloading aircraft; or 
screening or accepting cargo and checked baggage on behalf of the 
aircraft operator. Authorized representatives are treated similarly to 
employees if a regulatory violation occurs: although the authorized 
representative performs the function, the aircraft operator remains 
responsible for completion of those functions. Thus, an individual who 
works in an airport SIDA often is an authorized representative for 
numerous commercial aircraft operators, and generally the aircraft 
operators are responsible for regulatory violations committed by the 
individual.
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    \2\ See 49 CFR 1540.5 for definitions of SIDA and Sterile Area.
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Vetting Requirements

    In accordance with the governing statute,\3\ TSA's regulations 
require most individuals who work in aviation operations for an 
aircraft or airport operator to undergo a fingerprint-based CHRC. If 
the individual has a conviction for certain crimes within the preceding 
10 years, the airport or aircraft operator must not give the individual 
unescorted access to the SIDA, and the aircraft operator must not 
permit the individual to perform certain covered functions, such as 
loading and unloading aircraft; screening or accepting cargo or checked 
baggage for transport on aircraft; or supervising these functions. 
These regulations also set out requirements for fingerprint application 
processing, fingerprinting fees, determining arrest status, correcting 
inaccurate criminal records, dissemination of criminal records, 
recordkeeping, continuing responsibilities of the individual, and 
aircraft operator duties.\4\
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    \3\ See 49 U.S.C. 44936.
    \4\ See 49 CFR 1544.229(c)-(m).
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    Workers who need unescorted access to SIDAs at airports, where 
aircraft are typically loaded and unloaded, must successfully complete 
a CHRC.\5\ Individuals who work on behalf of aircraft operators to 
accept checked baggage and screen cargo are required to undergo a 
CHRC,\6\ and aircraft operator flight crew members are required to 
complete a CHRC.\7\ Some individuals who work in airport SIDAs for an 
aircraft operator or as an authorized representative of an aircraft 
operator are subject to duplicative requirements: 49 CFR 1542.209 
requires the airport operator to conduct a CHRC of all individuals 
seeking unescorted access to the SIDA, and 49 CFR 1544.229 requires 
aircraft operators to conduct CHRCs of employees and authorized 
representatives who perform certain covered functions that may occur in 
airport SIDAs. The regulations permit an aircraft operator to conduct a 
CHRC of a covered employee or authorized representative and provide the 
airport operator a letter certifying that the individual successfully 
completed the CHRC.\8\ This process reduces the number of duplicate 
CHRCs the airport operator, aircraft operator, and individual must 
complete. However, airport operators are not required to accept these 
CHRC certifications from aircraft operators, and many airport operators 
favor conducting their own CHRCs even when the aircraft operator has 
conducted one.
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    \5\ See 49 CFR 1542.209.
    \6\ See 49 CFR 1544.229.
    \7\ See 49 CFR 1544.230.
    \8\ See 49 CFRa 1542.209(n).
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    Recent improvements by the Federal Bureau of Investigation (FBI) 
provide recurrent criminal history checks so that once an individual's 
fingerprints are submitted to the FBI, the transmitter receives any 
additional criminal history associated with those fingerprints that 
occurs after the initial report from the FBI. This program, known as 
Rap Back,\9\ greatly improves the accuracy and effectiveness of 
criminal vetting and security. TSA invited airport operators and 
aircraft operators to volunteer to participate in the Rap Back program 
in 2018. Most airport operators and many aircraft operators volunteered 
to participate in Rap Back for their employees and authorized 
representatives who are required to undergo a CHRC. The airport 
operator or aircraft operator must `subscribe' the individual's 
fingerprints in Rap Back when first submitting the fingerprints to the 
FBI. Once the fingerprints are subscribed, the airport- or aircraft 
operator will automatically receive information concerning new criminal 
activity associated with those fingerprints and the individual. The 
airport- or aircraft operator must continuously review these Rap Back 
notifications to determine whether the individual has committed a new 
disqualifying offense. If a disqualifying event occurs, the airport- or 
aircraft operator must revoke the individual's unescorted access to the 
SIDA and/or authorization to perform covered functions, such as the 
acceptance or screening of cargo or checked baggage. Through security 
program amendments, TSA is now requiring airport operators and aircraft 
operators to subscribe all individuals who undergo CHRCs into Rap Back.
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    \9\ The full name of the program is the Record of Arrest and 
Prosecution Background.
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    As discussed above, workers who are granted unescorted access to 
SIDAs by the airport operator and are also employed by or act as an 
authorized representative for several aircraft operators when 
conducting certain functions, are subject to multiple CHRCs and Rap 
Back subscriptions. TSA seeks to ensure that all individuals required 
to undergo a CHRC actually complete that CHRC and are subscribed to Rap 
Back. However, requiring all entities--the airport that issues the SIDA 
badge and the aircraft operators that employ or

[[Page 53982]]

have an authorized representative relationship with the individual--to 
perform CHRCs is costly and unnecessary. Therefore, TSA is issuing this 
exemption to the CHRC and related requirements in 49 CFR 1544.229, 
provided aircraft operators comply with the requirements of the 
exemption that will ensure accountability for full CHRC and Rap Back 
coverage.

Authority and Determination

    TSA may grant an exemption from a regulation if TSA determines that 
the exemption is in the public interest.\10\ TSA finds this exemption 
to be in the public interest because it minimizes or eliminates 
redundant CHRCs and Rap Back subscriptions for certain workers at 
regulated airports, who work for multiple employers. TSA has determined 
that there is no risk to transportation security associated with this 
exemption because it provides an option to eliminate only duplicative, 
redundant security requirements.
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    \10\ 49 U.S.C. 114(q).
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Exemption

    1. Eligibility. The exemption applies only where the following 
criteria exist:
     The individual works at an airport with a SIDA, as 
prescribed in 49 CFR 1542.103(a) or Sec.  1542.103(b) with SIDA;
     The individual's duties include accepting checked baggage 
for transport, as prescribed in 49 CFR 1544.229(a)(3)(ii); screening or 
supervising the screening of cargo as prescribed in 49 CFR 
1544.229(a)(3)(i); screening cargo as prescribed in 49 CFR 
1544.229(a)(1)(iii)(C); and/or supervising the screening of cargo as 
prescribed 49 CFR 1544.229(a)(1)(iii)(B);
     The individual must have unescorted access to a SIDA or 
Sterile Area and possess an airport operator-issued SIDA and/or Sterile 
Area ID media, as prescribed in 49 CFR 1542.209 or SD 1542-04-08 
series;
     The individual is not the subject of a CHRC certification 
as set forth in 49 CFR 1544.229(a)(1)(i); and
     The individual does not possess a CREW/RAMP/EXCLUSIVE 
aircraft operator-issued SIDA ID media as set forth in 49 CFR 
1544.229(a)(1)(ii).
    2. Exemption. For the duration of this exemption, an aircraft 
operator is not required to conduct a CHRC, Rap Back subscription, or 
comply with the related requirements in 49 CFR 1544.229(c)-(m) for the 
individuals who meet the eligibility criteria.
    3. Duration. This exemption takes effect on September 29, 2021 and 
remains in effect until modified or rescinded by TSA through a notice 
published in the Federal Register.

    Dated: September 23, 2021.
David Pekoske,
Administrator.
[FR Doc. 2021-21190 Filed 9-28-21; 8:45 am]
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