[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Proposed Rules]
[Pages 43088-43092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20551]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1503
[Docket No. TSA-2009-0014]
RIN 1652-AA66
Reporting of Security Issues
AGENCY: Transportation Security Administration, DHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Transportation Security Administration (TSA) proposes to
add new procedures by which members of the public could report to TSA a
problem, deficiency, or vulnerability regarding transportation
security, including the security of aviation, maritime, railroad, motor
carrier vehicle, or pipeline transportation, or any mode of public
transportation, such as mass transit, in accordance with the
Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11
Act).
DATES: Submit comments by October 26, 2009.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
government-wide, electronic docket management system, using any one of
the following methods:
Electronically: You may submit comments through the Federal
eRulemaking portal at http://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address, hand-deliver, or fax your written
comments to the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The
Department of Transportation (DOT), which maintains and processes TSA's
official regulatory dockets, will scan the submission and post it to
FDMS.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Sarah Tauber, Office of Chief Counsel,
TSA-2, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6002; telephone (571) 227-3964; facsimile (571)
227-1380; e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
TSA invites interested persons to participate in this rulemaking by
submitting written comments, data, or views. TSA also invites comments
relating to the economic, environmental, energy, or federalism impacts
that might result from this rulemaking action. See ADDRESSES above for
information on where to submit comments.
With each comment, please identify the docket number at the
beginning of your comments. TSA encourages
[[Page 43089]]
commenters to provide their names and addresses. The most helpful
comments reference a specific portion of the rulemaking, explain the
reason for any recommended change, and include supporting data. The
public may submit comments and material electronically, in person, by
mail, or fax as provided under ADDRESSES, but please submit your
comments and material by only one means. If you submit comments by mail
or delivery, submit them in an unbound format, no larger than 8.5 by 11
inches, suitable for copying and electronic filing.
If you want TSA to acknowledge receipt of comments submitted by
mail, include with your comments a self-addressed, stamped postcard on
which the docket number appears. We will stamp the date on the postcard
and mail it to you.
TSA will file in the public docket all comments received by TSA,
except for comments containing confidential information and sensitive
security information (SSI).\1\ TSA will consider all comments received
on or before the closing date for comments and will consider comments
filed late to the extent practicable. The docket is available for
public inspection before and after the comment closing date.
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\1\ ``Sensitive Security Information'' or ``SSI'' is information
obtained or developed in the conduct of security activities, the
disclosure of which would constitute an unwarranted invasion of
privacy, reveal trade secrets or privileged or confidential
information, or be detrimental to the security of transportation.
The protection of SSI is governed by 49 CFR part 1520.
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Handling of Confidential or Proprietary Information and Sensitive
Security Information (SSI) Submitted in Public Comments
Do not submit comments that include trade secrets, confidential
commercial or financial information, or SSI to the public regulatory
docket. Please submit such comments separately from other comments on
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in the FOR FURTHER INFORMATION CONTACT
section.
TSA will not place comments containing SSI in the public docket and
will handle them in accordance with applicable safeguards and
restrictions on access. TSA will hold documents containing SSI,
confidential business information, or trade secrets in a separate file
to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
However, if TSA determines that portions of these comments may be made
publicly available, TSA may include a redacted version of the comment
in the public docket. If TSA receives a request to examine or copy
information that is not in the public docket, TSA will treat it as any
other request under the Freedom of Information Act (FOIA) (5 U.S.C.
552) and the Department of Homeland Security's (DHS') FOIA regulation
found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR 19477), or you may visit http://DocketInfo.dot.gov.
You may review TSA's electronic public docket on the Internet at
http://www.regulations.gov. In addition, DOT's Docket Management
Facility provides a physical facility, staff, equipment, and assistance
to the public. To obtain assistance or to review comments in TSA's
public docket, you may visit this facility between 9 a.m. to 5 p.m.,
Monday through Friday, excluding legal holidays, or call (202) 366-
9826. This docket operations facility is located in the West Building
Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington,
DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at http://www.regulations.gov;
(2) Accessing the Government Printing Office's Web page at http://www.gpoaccess.gov/fr/index.html; or
(3) Visiting TSA's Security Regulations Web page at http://www.tsa.gov and accessing the link for ``Research Center'' at the top
of the page.
In addition, copies are available by writing or calling the
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to
identify the docket number of this rulemaking.
Summary of the Rule
Congress required that the Secretary of Homeland Security
establish, by regulation and including a proposed rule, a process by
which any person may submit a report to the Secretary regarding public
transportation, railroad, or motor carrier vehicle security problems,
deficiencies, or vulnerabilities.\2\ The proposed rule would, if
promulgated in final form, establish a process by which reports could
be submitted, either by U.S. mail, electronic mail, or telephone.
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\2\ See Implementing Recommendations of the 9/11 Commission Act
of 2007, Public Law 110-53, 121 Stat. 266 (August 3, 2007), sections
1413(i), 1521(i) (codified at 49 U.S.C. 20109(j)), and 1536(i)
(codified at 49 U.S.C. 31105(i)). This rule would, but for the
requirements of Public Law 110-53, be a rule of agency procedure
that is excepted from the advance notice and public comment
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b)(B).
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This reporting mechanism is not intended for issues of immediate or
emergency security or safety concern. Immediate or emergency security
or safety concerns should be reported to the local emergency services
operator by telephoning 911.
Waste, fraud, and abuse in TSA programs should be reported to the
Department of Homeland Security Inspector General: (800) 323-8603, or
[email protected].
TSA proposes to designate in paragraph (a) of the final rule
addresses and a telephone number that any person may use to report to
TSA a problem, deficiency, or vulnerability regarding transportation
security, including the security of aviation, maritime, railroad, motor
carrier vehicle, or pipeline transportation, or any mode of public
transportation, such as mass transit. TSA will include in the final
rule the precise addresses (physical and electronic) for reporting. TSA
has included in this NPRM the enumeration of the addresses that will be
used and the actual addresses to the extent that they are fixed
addresses that are not subject to change. Proposed paragraphs (b) and
(c) provide that if the report identifies the person making the report,
TSA will acknowledge receipt of the report. TSA will review and
consider the information provided in the report and take appropriate
steps to address any problems, deficiencies, or vulnerabilities
identified.
Proposed paragraph (d) makes clear that a report made voluntarily
under proposed Sec. 1503.1 would not satisfy any separate legal
obligation of any individual to report information to TSA or any other
Government agency under any other law. For example, TSA regulations and
TSA-approved airport and aircraft operator security programs require
certain reports to TSA. See 49 CFR 1542.307(b)(3) and 1544.304(d).
Operators must comply with those provisions regardless of whether a
report has been submitted through the new part 1503 procedures.
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The 9/11 Act calls for a process to report security matters
regarding public transit, railroad, or motor carrier vehicle
transportation.\3\ TSA proposes to expand the scope of this provision
beyond that required by the statute. The proposed rule provides a
single point of contact for reporting transportation security problems,
deficiencies, or vulnerabilities in any mode in any mode of
transportation. The security benefits of receiving these reports would
apply to other modes of transportation as well as to those enumerated
in the statute. The broad language of the regulation would encourage
members of the public to submit reports for all modes. If warranted,
TSA would act to reduce security vulnerabilities that these reports
bring to TSA's attention. Separately from this rulemaking, TSA is in
the process of developing a program to confer monetary or other
recognition on individuals who provide valuable information to TSA
about criminal acts or other violations relating to transportation
security.
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\3\ Implementing Recommendations of the 9/11 Commission Act of
2007, Public Law 110-53, 121 Stat. 266 (August 3, 2007), sections
1413(i), 1521(i) (codified at 49 U.S.C. 20109(j)), and 1536(i)
(codified at 49 U.S.C. 31105(i)).
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Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (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 the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. As protection
provided by the Paperwork Reduction Act, as amended, an agency may not
conduct or sponsor, and a person is not required to respond to, a
collection of information unless it displays a currently valid OMB
control number. TSA has determined that there are no current or new
information collection requirements associated with this proposed rule.
Economic Impact Analyses
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 12866, Regulatory Planning and Review
(58 FR 51735, October 4, 1993), directs each Federal agency to propose
or adopt a regulation only upon a reasoned determination that the
benefits of the intended regulation justify its costs. Second, the
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996) requires agencies to analyze the economic impact of regulatory
changes on small entities. Third, the Trade Agreements Act (19 U.S.C.
2531-2533) prohibits agencies from setting standards that create
unnecessary obstacles to the foreign commerce of the United States.
Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
Tribal governments, in the aggregate, or by the private sector, of $100
million or more annually (adjusted for inflation).
Executive Order 12866 Assessment
In conducting these analyses, TSA has determined:
1. This rulemaking is not a ``significant regulatory action'' as
defined in the Executive Order. The Office of Management and Budget
agrees with this conclusion.
2. This rulemaking would not have a significant economic impact on
a substantial number of small entities.
3. This rulemaking would not constitute a barrier to international
trade.
4. This rulemaking does not impose an unfunded mandate on State,
local, or Tribal governments, or on the private sector.
The bases for these conclusions are summarized below.
Costs
This proposed rule would enhance the public's ability to report to
TSA--via e-mail, regular mail, or telephone--security concerns with
aviation, maritime, railroad, motor vehicle, pipeline, or public
transportation. TSA and the public would incur costs in the operation
of this enhanced reporting system.
TSA currently provides the public with two ways to communicate
security concerns through logging onto the TSA Web site (http://www.tsa.gov): (1) By clicking on the ``Contact Us'' link at the top of
the home page, clicking on the ``Security Issues'' link, scrolling down
to the heading ``Security Violations and Concerns,'' and filling out
and submitting an online form describing the security-related issue; or
(2) by clicking on the ``Contact Us'' link at the top of the home page,
clicking on the ``Security Issues'' link, and scrolling down to the
heading ``Security Violations and Concerns,'' where a toll-free
telephone number and e-mail address for the TSA Contact Center are
provided. With the implementation of this rule, TSA plans to move the
security-related contact information to a more prominent position on
the home page to facilitate reporting. This analysis of costs and
benefits assumes that TSA will proceed in that manner. After
considering public comments and reviewing internal procedures, however,
TSA may implement this rule differently.
There is no accurate method for gauging how many additional e-mail
messages, telephone calls, and letters reporting transportation-
security concerns the new placement of the contact number and address
could generate. Consequently, estimating an accurate cost to the public
of voluntarily reporting security concerns to TSA is difficult.
Nonetheless, one can use fiscal year (FY) 2008 TSA Contact Center data
to cost out potential scenarios. For this analysis, it has been
projected that the rule will double the number of security-related
telephone calls and e-mail messages TSA received in FY 2008.
In FY 2008, the Contact Center fielded 3,241 security-related
telephone calls. According to Contact Center statistics, the average
security-related call lasts four minutes. If one projects that the
public will place an additional 3,241 calls as a result of the rule,
then the public will spend 12,964 minutes (3,241 calls at about 4
minutes per call) on the telephone with TSA. At $29.24 per hour (TSA
assumes that most of the communications it will receive will be from
air travelers),\4\ the total annual cost to the public for the
additional telephone calls will be $6,318 ($29.24 per hour x 12,964
minutes/60 minutes per hour).
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\4\ This cost is the FAA's value of time for air travelers,
adjusted for inflation. Go to the following Web site for the FAA's
Value of Time: http://www.faa.gov/regulations%5Fpolicies/policy%5Fguidance/benefit%5Fcost/. Next, click on Data Files (zip),
and then click on 1-1.xls. This FAA table provides a ``Recommended
Hourly Value of Travel Time Savings'' of $23.30 (2000 dollars) for
personal travel by air carrier. The $23.30 is then converted to 2008
dollars by multiplying it times 1.255, the amount by which the
Consumer Price Index for Urban Wage Earners and Clerical Workers
(CPI-W) rose between 2000 and 2008 (212.038/168.892). The annual
value for 2008 (212.038) was calculated by summing the values for
Quarters 1-3 and dividing the total by 3. Here is the source of the
CPI-W numbers: http://www.ssa.gov/OACT/STATS/avgcpi.html.
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To estimate the cost of contacting TSA electronically, this
analysis used other data collected by the Contact Center as a starting
point. In FY 2008 the Center received 2,544 security-related e-mail
messages from customers who logged onto the TSA Web site,
[[Page 43091]]
clicked on the ``Contact Us/Security Issues/Security Violations and
Concerns'' links described above, filled out the Web form, and
submitted it. If one assumes that TSA will receive an additional 2,544
e-mail messages as a result of this rule and that the average e-mail
message will require fifteen minutes to prepare, one can modify the
value-of-time formula used to calculate the FY 2008 cost of security-
related telephonic reports to TSA to estimate the cost to the public of
e-mailing its concerns: 2,544 e-mail messages x 15/60 hours per e-mail
message x $29.24 per hour = $18,597.
The proposed rule would also allow the public to report security
concerns by regular mail. If one projects that this rule will generate
1,000 letters and that it takes the average letter writer 30 minutes to
write and mail a report, the value of the public's time for this
exercise would equate to $14,620 (1,000 letters x 30/60 hour per letter
x $29.24 per hour). When the cost of postage is included (1,000 letters
x $.42 per stamp = $420), using regular mail to report transportation
security concerns to TSA would cost the public $15,040.
The projected cost of the three modes of communication--$6,318 for
telephone calls, $18,597 for e-mail, and $15,040 for regular mail--is
$39,955. The public would assume this direct cost voluntarily; the cost
is not imposed by this rule.
In addition to this direct cost to the public, TSA would incur
expenses in handling the increased volume of reports. Although it is
not feasible to accurately establish the number of additional
telephonic and e-mail reports the new placement of the contact number
and address will generate, the Transportation Security Operations
Center (TSOC) plans to hire six full time equivalent (FTE) contract
watch officers (at an overall cost of $127,000 per year for each
officer) to handle the increased volume.\5\ The incremental annual
labor costs in administering these telephonic and e-mail reports would
total $762,000 (6 x $127,000). TSA estimates that the toll-free
telephone line would cost approximately $25 per month for the analog
line charge and one cent per minute for line usage. If one projects
that the rule will generate 3,241 additional telephone calls per year,
the cost of the toll-free telephone line amounts to $430 ((3,241 calls
x 4 minutes x $.01 per minute) + (12 months x $25)). Taken together,
the estimated labor costs ($762,000) and telephone-line costs ($430)
yield a total annual cost to TSA of $762,430.\6\ Because TSA would not
expect to hire additional personnel to handle any increase in security-
related letters received via regular mail, no additional mail-
administration costs are anticipated.
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\5\ This estimate of six FTEs may turn out to be high; the
actual number will depend on how many reports TSOC receives, their
complexity, and the percentage that require follow-up actions.
\6\ TSOC will incur no incremental costs for training because
in-house training has already been funded. There also will be no
additional expenses for space, computers, and telephones; existing
equipment at TSOC will be used to handle the expected increase in
telephonic and e-mail reporting.
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Benefits
This rulemaking provides the following benefits:
1. It expands the public's ability to report problems,
deficiencies, and vulnerabilities regarding transportation security.
2. It reminds the public that TSA wants to receive these reports.
3. It gives the public a simple method of alerting TSA to
transportation security concerns that may otherwise have been
overlooked. It is quite possible that reports from the public could
prevent a national security problem that otherwise would have gone
unaddressed.
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies
perform a review to determine whether a proposed or final rule will
have a significant economic impact on a substantial number of small
entities. If the determination is that it will, the agency must prepare
a regulatory flexibility analysis as described in the RFA. For purposes
of the RFA, small entities include small businesses, not-for-profit
organizations, and small governmental jurisdictions per section 601(6)
of the RFA. Individuals and States are not included in the definition
of a small entity.
This proposed rule enhances the public's ability to report security
concerns voluntarily to TSA. TSA and the public will incur some costs
in the operation of this enhanced reporting system. As stated
previously, the public would voluntarily assume the direct cost of
reporting problems and deficiencies to TSA; the cost is not imposed by
this rule. TSA certifies that this rulemaking would not have a
significant economic impact on a substantial number of small entities.
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. Legitimate domestic objectives, such as safety, are not
considered unnecessary obstacles. The statute also requires
consideration of international standards and, where appropriate, that
they be the basis for U.S. standards. TSA has assessed the potential
effect of this rulemaking and has determined that it will impose the
same costs on domestic and international entities and thus have a
neutral trade impact.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 is intended, among other
things, to curb the practice of imposing unfunded Federal mandates on
State, local, and Tribal governments. Title II of the Act requires each
Federal agency to prepare a written statement assessing the effects of
any Federal mandate in a proposed or final agency rule 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; such a mandate is deemed to be a
``significant regulatory action.''
This rulemaking does not contain such a mandate. The requirements
of Title II of the Act, therefore, do not apply and TSA has not
prepared a statement under the Act.
Executive Order 13132, Federalism
TSA has analyzed this proposed rule under the principles and
criteria of Executive Order 13132, Federalism. We determined that this
action would not have a substantial direct effect on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government, and therefore would not have federalism implications.
Environmental Analysis
TSA has reviewed this action 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.
Energy Impact Analysis
The energy impact of the notice has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). We have determined that this rulemaking is
not a major regulatory action under the provisions of the EPCA.
[[Page 43092]]
List of Subjects in 49 CFR Part 1503
Administrative practice and procedure, Investigations, Law
enforcement, Penalties, Transportation.
The Proposed Amendments
For the reasons set forth in the preamble, the Transportation
Security Administration proposes to amend part 1503 in chapter XII of
title 49, Code of Federal Regulations as follows:
PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
1. The authority citation for part 1503 is revised to read as
follows:
Authority: 6 U.S.C. 1142; 18 U.S.C. 6002; 28 U.S.C. 2461 (note);
49 U.S.C. 114, 20109, 31105, 40113-40114, 40119, 44901-44907, 46101-
46107, 46109-46110, 46301, 46305, 46311, 46313-46314.
2. Revise subpart A heading and Sec. 1503.1 to read as follows:
Subpart A--Reports by the Public of Security Problems,
Deficiencies, and Vulnerabilities
Sec. 1503.1 Submission of reports to TSA.
(a) Any person may report to TSA a problem, deficiency, or
vulnerability regarding transportation security, including the security
of aviation, maritime, railroad, motor carrier vehicle, or pipeline
transportation, or any mode of public transportation, such as mass
transit. Reports may be made to TSA at the following addresses:
(1) U.S. mail at Transportation Security Administration, TSA HQ,
TSA-XXX, 601 South 12th Street, Arlington, VA 20598-6002;
(2) By e-mail at XXX.dhs.gov; or
(3) By telephone at (XXX) XXX-XXXX.
(b) If a report submitted under this section identifies the person
making the report, TSA will respond promptly to such person and
acknowledge receipt of the report.
(c) TSA will review and consider the information provided in any
report submitted under this section and take appropriate steps to
address any problems, deficiencies, or vulnerabilities identified.
(d) Nothing in this section relieves a person of a separate
obligation to report information to TSA under another provision of this
title, a security program, or a security directive, or to another
Government agency under other law.
Issued in Arlington, Virginia, on August 20, 2009.
Keith Kauffman,
Acting Deputy Administrator.
[FR Doc. E9-20551 Filed 8-25-09; 8:45 am]
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