[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Rules and Regulations]
[Pages 67681-67683]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23064]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1570

[Docket No. TSA-2015-0001]
RIN 1652-AA55


Security Training for Surface Transportation Employees; 
Compliance Dates; Amendment

AGENCY: Transportation Security Administration, DHS.

ACTION: Final rule.

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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 Sec.  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 (571) 227-5563 or email to 
[email protected].

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\
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    \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.
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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.
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    \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).
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    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.
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    \7\ Id.
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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 
Sec.  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

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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 (Sec.  1570.105),\9\ to identify a security 
coordinator (Sec.  1570.201), and to report security incidents to TSA 
(Sec.  1570.203).\10\
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    \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 Sec.  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 Sec.  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.
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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.
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    \11\ See 5 U.S.C. 553(b)(B), (d).
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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.
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    \12\ See 44 U.S.C. 3501 et seq.
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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\
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    \13\ See 5 U.S.C. 603, 604.
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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.
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    \14\ See E.O. 13132, sec. 6.
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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

[[Page 67683]]

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:

0
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).

0
2. Amend Sec.  1570.109 by revising paragraphs (b)(1) and (2) to read 
as follows:


Sec.  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.
[FR Doc. 2020-23064 Filed 10-21-20; 4:15 pm]
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