2020-23064. Security Training for Surface Transportation Employees; Compliance Dates; Amendment

AGENCY:

Transportation Security Administration, DHS.

ACTION:

Final rule.

SUMMARY:

This final rule amends the “Security Training for Surface Transportation Employees” (Security Training) final rule (published March 23, 2020, and amended May 1, 2020) to extend the compliance dates by which certain requirements must be completed. TSA is aware that many owner/operators within the scope of this rule's applicability may be unable to meet the compliance deadline for submission of the required security training programs to TSA for approval because of the impact of COVID-19 as well as actions taken at various levels of government to address this public health crisis. In response, TSA is extending the compliance deadline for submission of the required security training program to no later than March 22, 2021. Should TSA determine that an additional extension of time is necessary based upon the impact of the COVID-19 public health crisis, TSA will publish a document in the Federal Register announcing an updated compliance date for this requirement.

DATES:

Effective Date: This rule is effective October 26, 2020.

Compliance Dates: Compliance date for submission of security training program to TSA under § 1570.19(b)(1) and (2): March 22, 2021.

FOR FURTHER INFORMATION CONTACT:

Harry Schultz (TSA; Policy, Plans, and Engagement, Surface Division) or David Kasminoff (TSA, Senior Counsel; Regulations and Security Standards; Office of Chief Counsel) by telephone at [phone] or email to [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

TSA published the Security Training Final Rule on March 23, 2020.^[1] This rule requires owner/operators of higher-risk freight railroad carriers, public transportation agencies (including rail mass transit and bus systems), passenger railroad carriers, and over-the-road bus companies, to provide TSA-approved security training to employees performing security-sensitive functions. As published on March 23, 2020, TSA scheduled the final rule to take effect on June 22, 2020, with the first compliance deadline set for July 22, 2020.^[2] On May 1, 2020, TSA delayed the effective date of the final rule to September 21, 2020, in recognition of the potential impact of COVID-19 measures and related strain on resources for owner/operators required to comply with the regulation.^[3] TSA revised all compliance dates within the rule to reflect the new effective date.^[4]

II. Request for Delay

On August 10, 2020, several members of the Surface Transportation Security Advisory Committee (STSAC) ^[5] submitted a request to the TSA Administrator to further delay the effective date of the Security Training Final Rule.^[6] In their letter, representatives from the three modes affected by this rulemaking argued that the effective date should be extended because they are unable to comply with the regulation's requirements due to the impact of the COVID-19 public health crisis as well as the need to prepare for, and address, the impact of contingencies such as the hurricane and tropical storm season.

They also indicated a need to focus on training to address these issues, such as employee responsibilities for personal medical screening, workplace hygiene, social distancing, and repeated cleanings daily of transportation vehicles and facilities used by co-workers, employees in other sectors, and the public generally. They indicated that the responsible leads and supporting staffs necessary to develop and implement a security training program that meets TSA's requirements are the same individuals who are currently focusing their efforts on assuring worker and public health and safety while sustaining operations throughout the continuing national public health emergency caused by COVID-19.” ^[7] The letter also argued that some of the activities in response to other issues and contingencies have a security benefit. For example, their actions to address safety and security during ongoing demonstrations have resulted in a positive security benefit.

III. Amending Compliance Date

TSA recognizes the impact of COVID-19 on our surface stakeholders and the need to provide some relief at a time when many owner/operators are simultaneously leveraging a range of resources to address multiple challenging circumstances, and struggling financially and limiting operations due to the effects of the COVID-19 public health crisis. After considering the current operational environment and the purpose of this regulation, TSA has decided to maintain the current effective date for the rule but to further extend the compliance deadline in § 1570.109(b) for security program submission to March 22, 2021. This extension would provide the industry with a total of 180 days of relief for submission of security training programs as compared to the original deadline of September 20, 2020, and extend the deadline for initial training of all employees in security-sensitive positions into the late spring and early summer of 2022.^[8] TSA believes this action addresses the most burdensome requirements in the rule, such as submitting security training programs to TSA for approval and training employees in security-sensitive positions, without delaying other key elements of the rule. Should TSA determine that an additional extension of time for submission of the security training program is necessary based upon the impact of the COVID-19 public health crisis, TSA will publish a document in the Federal Register announcing an updated compliance date for this requirement. TSA is not extending the deadlines for owner/operators to report to TSA whether they fall within the rule's applicability (§ 1570.105),^[9] to identify a security coordinator (§ 1570.201), and to report security incidents to TSA (§ 1570.203).^[10]

IV. Regulatory Analysis

A. Administrative Procedure Act

TSA takes this action without prior notice and public comment. Sections 553(b) and (d) of the Administrative Procedure Act (5 U.S.C. 553) authorize agencies to dispense with certain rulemaking procedures when they find good cause to do so. Under section 553(b), the requirements of notice and opportunity to comment do not apply when the agency for good cause finds that these procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d) allows an agency, upon finding good cause, to make a rule effective immediately, thereby avoiding the 30-day delayed effective date requirement in section 553.

This final rule recognizes the need to extend the compliance deadline for the requirement in the Security Training Final Rule that would be most difficult for owner/operators to implement during the current COVID-19 public health crisis and the significant disruption and uncertainty in both private and local government operations caused by this crisis. Specifically, TSA is extending the period during which owner/operators must develop a security training program for their employees and submit the program to TSA for approval. Delaying this requirement also effectively delays the deadline for training employees.

TSA has good cause to delay the compliance deadline for submission of security training programs without advance notice and comment or a delayed effective date.^[11] To delay taking this action while waiting for public comment would be impracticable and contrary to the public interest. The owner/operators subject to the requirements of the final rule need immediate certainty regarding the deadlines of the final rule so that they may focus on other urgent issues affecting their operations.

B. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) ^[12] requires Federal agencies to 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 OMB for each collection of information. OMB has approved the collection of information for the Security Training Final Rule under OMB control number 1652-0066. While this rule delays the timing of submission, it does not modify the collection burdens that OMB has already approved.

C. Executive Orders 12866 and 13563 Assessment

Executive Orders 12866 (Regulatory Planning and 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.

Executive Order 12866 defines “significant regulatory action” as one that is likely to result in a rule that may (1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or Tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights or obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action,” under Executive Order 12866. Accordingly, OMB has not reviewed it.

D. Regulatory Flexibility Act Assessment

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), requires Federal agencies to consider the potential impact of regulations on small businesses, small government jurisdictions, and small organizations during the development of their rules. This final rule, however, makes changes for which notice and comment are not necessary. Accordingly, DHS is not required to prepare a regulatory flexibility analysis.^[13]

E. Executive Order 13132 (Federalism)

A rule has federalism implications under E.O. 13132, if it has a substantial direct effect on State governments, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. DHS has analyzed this rule under E.O. 13132 and determined that although this rule affects the States, it does not impose substantial direct compliance costs or preempt State law.^[14] The rule relieves burdens on States.

F. Unfunded Mandates Assessment

The Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to assess the effects of their regulatory actions. In particular, the UMRA addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100 million (adjusted for inflation) or more in any one year. This final rule will not result in such an expenditure.

G. Environment

TSA has reviewed this rulemaking for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has determined that this action will not have a significant effect on the human environment. This action is covered by categorical exclusion (CATEX) number A3(e) in DHS Management Directive 023-01 (formerly Management Directive 5100.1), Environmental Planning Program, which guides TSA compliance with NEPA.

List of Subjects in 49 CFR Part 1570

• Commuter bus systems
• Crime
• Fraud
• Hazardous materials transportation
• Motor carriers
• Over-the-Road bus safety
• Over-the-Road buses
• Public transportation
• Public transportation safety
• Rail hazardous materials receivers
• Rail hazardous materials shippers
• Rail transit systems
• Railroad carriers
• Railroad safety
• Railroads
• Reporting and recordkeeping requirements
• Security measures
• Transportation facility
• Transportation Security-Sensitive Materials

The Amendments

For the reasons stated in the preamble, the Transportation Security Administration amends 49 CFR part 1570 as follows:

1. The authority citation for part 1570 continues to read as follows:

Authority: 18 U.S.C. 842, 845; 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 46105; Pub. L. 108-90 (117 Stat. 1156, Oct. 1, 2003), sec. 520 (6 U.S.C. 469), as amended by Pub. L. 110-329 (122 Stat. 3689, Sept. 30, 2008) sec. 543 (6 U.S.C. 469); Pub. L. 110-53 (121 Stat. 266, Aug. 3, 2007) secs. 1402 (6 U.S.C. 1131), 1405 (6 U.S.C. 1134), 1408 (6 U.S.C. 1137), 1413 (6 U.S.C. 1142), 1414 (6 U.S.C. 1143), 1501 (6 U.S.C. 1151), 1512 (6 U.S.C. 1162), 1517 (6 U.S.C. 1167), 1522 (6 U.S.C. 1170), 1531 (6 U.S.C. 1181), and 1534 (6 U.S.C. 1184).

2. Amend § 1570.109 by revising paragraphs (b)(1) and (2) to read as follows:

§ 1570.109

Submission and approval.

* * * * *

(b) * * *

(1) Submit its program to TSA for approval no later than March 22, 2021.

(2) If commencing or modifying operations so as to be subject to the requirements of subpart B to 49 CFR parts 1580, 1582, or 1584 after March 22, 2021, submit a training program to TSA no later than 90 calendar days before commencing new or modified operations.

* * * * *

David P. Pekoske,

Administrator.

Footnotes

1.  85 FR 16456.

2.  See, e.g., 85 FR at 16469.

3.  85 FR 25315.

4.  See id. for table of extended deadlines for compliance.

5.  The STSAC was established under the authority of Section 1969 of the TSA Modernization Act (Division K, Title I), of the FAA Reauthorization Act of 2018 (Pub. L. 115-254, 132 Stat. 3186, Oct. 5, 2018). Section 1969 amended Subtitle A of title IV of the Homeland Security Act of 2002 (6 U.S.C. 201 et seq.). The statute exempts the committee, and any subcommittees, from the Federal Advisory Committee Act (5 U.S.C. App.). The STSAC is chartered for the purpose of advising, consulting with, reporting to, and making recommendations to the TSA Administrator on surface transportation security matters, including the development, refinement, and implementation of policies, programs, initiatives, rulemakings, and security directives pertaining to surface transportation security. Additional information on the STSAC is available on TSA's website at: https://www.tsa.gov/​for-industry/​surface-transportation-security.

6.  See Docket No. TSA-2015-0001-0045 at Regulations.gov for Letter from Thomas Farmer of the Association of American Railroads; Polly Hanson of the American Public Transportation Association; Chief Ronald Pavlick of the Washington Metropolitan Area Transportation Authority; Colonel (Ret.) Michael Licata, Academy Bus; and J.R. Gelnar of the American Short Line and Regional Railroad Association (dated Aug. 10, 2020).

7.  Id.

8.  Under the rule, owner/operators have up to one year (12 months) after their security training program is approved by TSA to provide initial training to all of their security-sensitive employees. See § 1570.111. Once the proposed program is submitted to TSA, the agency has 60 days (2 months) to review and approve a security program, with the ability to extend the review period and/or require the owner/operator to modify the program, which would stay the 60-day period. Thus, from the date the program is submitted to TSA, owner/operators will have at least 14 months to train their employees.

9.  The rule sets the criteria for applicability, but requires owner/operators to determine if the criteria applies to their operations. For new and modified operations, owner/operators are required to notify TSA within 90 days before commencing their operations. See § 1570.105(b). This provision is intended to cover situations where a route is changed or cargo transported is modified in such a way as to trigger applicability. It also applies, however, to the current situation where an owner/operator may have cut routes or closed their business completely due to COVID-19. As the economy recovers and operations resume, owner/operators will be required to notify TSA in advance of commencing operations that would trigger applicability of the rule's requirements.

10.  The last two requirements are an extension of current requirements applicable to railroads and rail transit systems (under 49 CFR part 1580 as promulgated in 2008) to higher-risk bus transit systems and OTRBs.

11.  See 5 U.S.C. 553(b)(B), (d).

12.  See 44 U.S.C. 3501 et seq.

13.  See 5 U.S.C. 603, 604.

14.  See E.O. 13132, sec. 6.