[Federal Register Volume 76, Number 78 (Friday, April 22, 2011)]
[Rules and Regulations]
[Pages 22625-22630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-9629]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1503
[Docket No. TSA-2009-0014; Amendment No. 1503-4]
RIN 1652-AA66
Reporting of Security Issues
AGENCY: Transportation Security Administration, DHS.
ACTION: Final rule.
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SUMMARY: The Transportation Security Administration (TSA) is adding
procedures by which any person will receive a receipt for reporting a
problem, deficiency, or vulnerability related to 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: Effective May 23, 2011.
FOR FURTHER INFORMATION CONTACT: Traci Klemm, Office of Chief Counsel,
TSA-2, Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6002; telephone (571) 227-3596; facsimile (571)
227-1380; e-mail traci.klemm@dhs.gov.
SUPPLEMENTARY INFORMATION:
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 person
in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify
the docket number of this rulemaking.
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 FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.
Background
In the immediate aftermath of the events on September 11, 2001, the
Federal Aviation Administration (FAA) established a task force to
respond to the large volume of incoming phone calls, e-mails, and
letters from the public. On June 1, 2002, the Transportation Security
Administration (TSA) assumed responsibility for this response to the
public, creating what is now known as the TSA Contact Center (TCC). The
TCC is a widely-publicized open line for the public to contact TSA. As
such, it has also provided a mechanism through which TSA may receive
information about potential threats to transportation security from
both well-meaning persons and those with harmful intent.
In December 2004, TCC availability was expanded to 24 hours a day,
7 days a week, 365 days per year, primarily to ensure continuous review
for threat-related contacts. The current process for public reporting
of potential security violations, threat information or criminal
activities, vulnerabilities and intelligence was put in place after the
DHS Office of Inspector General assessed the Agency's actions to
improve the handling of threat and non-threat communications following
an incident where a college student was testing security.\1\
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\1\ See unclassified summary at: http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_05-51_Sep05.pdf.
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TSA also has ongoing initiatives within the various transportation
modes, such as the General Aviation Secure Program, that includes
hotline numbers to alert TSA of security concerns.\2\ Information from
these reporting options, along with reports of other security incidents
and concerns required by various TSA regulations, is received and
processed by the same analytical components of TSA. Through
[[Page 22626]]
the Transportation Security Operations Center (TSOC) and other TSA
components, information is also routinely passed to TSA's partners for
appropriate response.
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\2\ See http://www.tsa.gov/what_we_do/tsnm/general_aviation/programs_sp.shtm#general_aviation for more information on the
General Aviation Secure Program.
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The ``Implementing Recommendations of the 9/11 Commission Act'' (9/
11 Act) requires the Secretary of Homeland Security to establish, by
regulation, a process for any person to report transportation-related
security problems, deficiencies, or vulnerabilities and promptly
receive an acknowledging receipt for their report.\3\ This requirement
is included in provisions to protect transportation-sector employees
from discrimination or other retaliation for reporting or preventing
violations of Federal laws related to transportation safety or
security.\4\
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\3\ Public Law 110-53, 121 Stat. 266 (August 3, 2007), sections
1413(i) (public transportation), 1521(i) (railroad carriers), and
1536(i) (commercial motor vehicles); these sections are codified in
the United States Code at 6 U.S.C. 1142, 49 U.S.C. 20109, and 49
U.S.C. 31105, respectively. Future references will be to the
codified sections.
\4\ Id.
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Summary of the Rule
This rule, which implements the 9/11 requirements, establishes the
process for any person \5\ to receive a receipt for making a report to
TSA regarding any transportation-related security problem, deficiency,
or vulnerability. This mechanism to receive a receipt for reports
applies to all modes of transportation, including aviation, commercial
motor vehicle, maritime, pipeline, public transportation, and railroad
transportation.
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\5\ For purpose of TSA regulations, ``person'' is defined in 49
CFR 1500.3.
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In Sec. 1503.3(a) of the rule, TSA designates the addresses and a
telephone number that a person must use in order to obtain a receipt
for their report. In order to obtain a receipt, the person must use one
of these reporting mechanisms and provide valid contact information.
Paragraph (b) indicates how TSA will provide a receipt
acknowledging the report. Reports submitted by mail or through the
Internet will receive written confirmation. Internet receipts will
include the content of the report. Reports submitted by phone will
receive a call identifier number. The call identifier number is linked
to a copy of the information as recorded by TSA, which will be
maintained according to TSA's record retention schedules (currently,
these records are scheduled to be retained by TSOC for two years). To
receive a written copy of the report, the person will need to contact
TSA at the address identified in the rule within two years of their
call and request a paper copy.
Paragraph (c) reiterates TSA's commitment to review and consider
all information received and to take appropriate steps.
Paragraph (d) clarifies that a report made voluntarily under this
subpart will not satisfy any separate legal obligation of any person to
report information to TSA or any other Government agency under any
other law. Operators must comply with those provisions regardless of
whether a report has been submitted through the new part 1503
procedures.
Finally, paragraph (e) is a reminder that these reporting
mechanisms are not to be used for reporting immediate or emergency
security or safety concerns. These concerns should be immediately
reported to the appropriate emergency services operator, such as by
calling 911. Alleged waste, fraud, and abuse in TSA programs should be
reported to the Department of Homeland Security Inspector General:
(800) 323-8603, or DHSOIGHOTLINE@dhs.gov.
Authorities
As previously discussed, the 9/11 Act requires DHS to issue this
regulation for transportation security-related reports affecting public
transportation, rail, and motor carriers. TSA has determined that the
security benefits of receiving these reports applies to modes of
transportation not enumerated in the statute: Aviation, maritime, and
pipeline.
Aspects of this rule not required by the 9/11 Act are supported by
TSA's statutory authority to enhance security for all modes of
transportation.\6\ TSA has broad regulatory authority and may issue,
rescind, and revise such regulations as are necessary to carry out its
transportation security functions.\7\
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\6\ See 49 U.S.C. 114(d). The TSA Administrator's current
authorities under ATSA have been delegated to him by the Secretary
of Homeland Security. Section 403(2) of the Homeland Security Act
(HSA) of 2002, Public Law 107-296, 116 Stat. 2315 (Nov. 25, 2002),
transferred all functions of TSA, including those of the Secretary
of Transportation and the Under Secretary of Transportation of
Security related to TSA, to the Secretary of Homeland Security.
Pursuant to DHS Delegation Number 7060.2, the Secretary of Homeland
Security delegated to the Administrator, subject to the Secretary's
guidance and control, the authority vested in the Secretary with
respect to TSA, including that in sec. 403(2) of the HSA.
\7\ 49 U.S.C. 114(l)(1).
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Changes From the Notice of Proposed Rulemaking (NPRM)
This final rule adopts the regulations proposed in the NPRM \8\
with minor revisions. A scope provision has been added. Addresses for
providing reports by mail, through the Internet, or by phone have been
added to 49 CFR part 1503. Information on how to obtain a receipt has
also been provided. This preamble does not address technical
corrections or corrected typographical errors.
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\8\ Published in the Federal Register on August 26, 2009 (74 FR
43088).
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While the text of the rule has not been significantly altered since
the NPRM, the costs estimated for this regulation have been
significantly lowered. At the time that the NPRM was published, TSA
intended to extensively publicize the reporting mechanism for use by
the general public to report any transportation-related security
concern. The costs in the NPRM reflected that assumption. Since that
time, however, DHS has launched the ``See Something, Say Something''
campaign.
The ``See Something, Say Something'' campaign is part of DHS's
commitment to promoting a vigilant citizenry that actively participates
in protecting national security. In her September 2010 speech to first
responders at the NYC Emergency Operations Center, Secretary Napolitano
noted in her prepared remarks: ``Recall that it was a New York street
vendor who tipped off a policeman about the bombing attempt in Times
Square. It was a group of passengers on Flight 253 who intervened to
stop the bombing attempt on Christmas Day.'' She then continued,
``Making individuals and citizens better informed and empowered is
crucial, and DHS has therefore launched, and is expanding, a national
campaign around a slogan you probably know well: `If You See Something,
Say Something.' '' The purpose of the campaign, as stated by the
Secretary, is to raise ``awareness of potential terrorist tactics, and
emphasizing the importance of reporting suspicious activity to law
enforcement.''
The implementation of that campaign has changed TSA's assumptions
regarding how the mechanisms required by the 9/11 Act are likely to be
used. Where the NPRM estimated costs based on the most currently
available number of all security-related calls to the Contact Center
and then increased that amount based on additional publicity, TSA now
assumes that most reports under this rule will be made by a subset of
the individuals who contact TSA with security concerns, primarily made
up of employees within the transportation sector seeking a reporting
mechanism that will provide them with documentation of their report in
the event they may need it in the future. This results in far fewer
estimated reports resulting from the mechanisms
[[Page 22627]]
under this final rule than estimated in the NPRM.
As a result, the estimated costs have been significantly reduced
from those provided in the NPRM. This specifically relates to estimates
for the number of reports received and the TSA costs for processing
those reports. In addition, TSA has developed new automated mechanisms
for providing receipts to persons who report security concerns through
e-mail; all security-related reports, regardless of whether they are
being made as a result of this rule or for other reasons, will
automatically receive an e-mail receipt. This substantially reduces the
potential costs for TSA.
Public Comments on the NPRM
The public comment period for the NPRM closed on October 26, 2009.
TSA received two public comments, from a commercial airline and a trade
association representing members of the aviation industry. TSA
addresses these comments below.
Including the Aviation Industry
Comments: One commenter objected to including the aviation industry
in the scope of this rule because this sector is already highly
regulated and required to report suspicious activities and events. As
part of these requirements, they assert that knowledgeable employees
report deficiencies, incidents, and vulnerabilities. They question
whether untrained persons will be able to ``identify true
vulnerabilities within commercial aviation without the understanding or
comprehension of our security programs?''
TSA Response: This rule does not create a reporting requirement; it
provides a voluntary reporting and receipt mechanism. Therefore, it is
neither imposing an additional regulatory burden upon the industry nor
duplicating the requirements for air carriers or other owner/operators
to report security incidents and events. It is intended to provide a
mechanism for anyone reporting transportation-related security
problems, deficiencies, and vulnerabilities to obtain a receipt of
their report. TSA is not limiting the scope for who can benefit from
this mechanism, recognizing that transportation employees and members
of the general public are capable of identifying things that are out of
the ordinary. TSA will evaluate the information and determine whether
further investigation or validation is necessary and by whom.
While the language regarding the reporting and receipt mechanism is
inclusive, referencing ``any person,'' \9\ we note that the requirement
for TSA to develop this mechanism is contained in statutory provisions
that are focused on providing protections for surface transportation
employees who report concerns to authorities and are subsequently
subject to retaliation, discharge, or discrimination.\10\ The 9/11 Act
can be seen as an extension of these protections previously enacted for
aviation employees.\11\ The processes set forth in this rule provide
all transportation-related employees with the ability to obtain a
receipt for reports.
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\9\ 6 U.S.C. 1142(i), 49 U.S.C. 20109(i), and 49 U.S.C.
31105(i).
\10\ 6 U.S.C. 1142, 49 U.S.C. 20109, and 49 U.S.C. 31105.
\11\ See 49 U.S.C. 42121.
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TSA Rewards Program
Comments: As noted in the preamble of the NPRM,\12\ TSA is in the
process of developing a program to confer monetary or other recognition
on persons who provide valuable information to TSA about criminal acts
or other violations relating to transportation security. One commenter
raised questions regarding how TSA is planning to administer a rewards
program for persons who provide valuable information related to
transportation security.
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\12\ See 74 FR 43090 (August 26, 2009).
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TSA Response: The rewards program is still under development. Any
information regarding implementation of a rewards program by TSA will
be contained in other documents when appropriate.
Costs of the Rule
Comments: One commenter asserted that implementation of this rule
will cost the taxpayers $1,000,000 annually and provide no benefit.
They asserted the ``traveling consumer should not bear the monetary
burden of this program.''
TSA response: Costs for implementing this statutorily-required rule
have been revised and are discussed in Economic Impact Analyses section
of this preamble. TSA disagrees that there is no benefit from providing
this mechanism. It is important for the public, travelers, and
employees to remain vigilant and play an active role in keeping the
country's transportation network, and the people who rely on it, safe
and secure. Similar to the ``If You See Something, Say Something''
campaign originally implemented by New York City's Metropolitan Transit
Authority, it is important to raise awareness and ensure reporting of
vulnerabilities and weaknesses in security measures that could make the
transportation sector a weak target for terrorists and others with
malicious intent.
Coordination With the ``General Aviation Hotline'' Program
Comments: One commenter urged TSA to ensure that the processes
identified in this rule complement the existing ``General Aviation
Hotline'' program. They state that this program is well known within
the general aviation industry and is part of an ongoing effort to
develop a more comprehensive reporting for aviation security.
TSA response: The mechanism created by this rule complements the
General Aviation Hotline program. The General Aviation Hotline program,
also known as the General Aviation Secure Program, was developed by
TSA's Office of Transportation Sector Network Management (TSNM) General
Aviation Division by working with the industry and community to build
upon the Airport Watch program, encouraging everyone to be vigilant
about General Aviation security and report any unusual activities to
TSA. Now seen in the context of the Department of Homeland Security's
broader ``See Something, Say Something Campaign,'' the program includes
a number where suspicions regarding operations can be reported, such as
pilots appearing to be under the control of others, unfamiliar persons
loitering around the field, suspicious aircraft lease or rental
requests, anyone making threats, and unusual, suspicious activities or
circumstances. Information from reports made by persons under this rule
will be processed and analyzed through the same TSA component as
information received through the General Aviation program, providing
TSA with a more comprehensive picture of threats and vulnerabilities to
transportation security.
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 PRA, 44 U.S.C. section 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 there are no current or
new information
[[Page 22628]]
collection requirements associated with this rule.
Economic Impact Analyses
Regulatory Evaluation
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order (EO) 12866, Regulatory Planning and
Review,\13\ 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 consider 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).
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\13\ 58 FR 51735 (Oct. 4, 1993).
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Executive Order 12866 Assessment
In conducting these analyses, TSA determined:
1. This rulemaking is not a ``significant regulatory action'' as
defined in the Executive Order.
2. This rulemaking will not have a significant economic impact on a
substantial number of small entities.
3. This rulemaking will 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 basis for these conclusions is set forth below.
Costs
This rule enhances the ability for any person to report to TSA--via
regular mail, through the Internet, or telephone--security problems,
deficiencies, or vulnerabilities related to aviation, maritime,
railroad, motor vehicle, pipeline, or public transportation. As
previously discussed, when TSA prepared its initial draft of this rule,
it intended to extensively publicize the reporting mechanism for use by
the general public to report any transportation-related security
concern. The costs in the NPRM reflected that assumption. Since that
time, however, DHS has developed the ``See Something, Say Something''
campaign. The implementation of that campaign has changed TSA's
assumptions for how the reporting and receipt mechanisms required by
the 9/11 Act are likely to be used.
TSA now assumes that most reports under this rule will be made by a
subset of the general population, primarily made up of employees within
the transportation sector seeking a reporting mechanism that will
provide them with documentation of their report in the event they may
need it in the future. This results in far fewer estimated reports
under this final rule than estimated in the NPRM. As a result, the
estimated costs have been significantly reduced from those provided in
the NPRM. This specifically relates to estimates for the number of
reports received and the TSA costs for processing those reports. In
addition, TSA has developed new automated mechanisms for providing
receipts to persons who report security concerns through e-mail; all
security-related reports, regardless of whether they are being made as
a result of this rule or for other reasons, will automatically receive
an e-mail receipt. Consistent with the estimates of the NPRM, TSA
assumes that the costs associated with the operation of this reporting
system will be incurred by TSA and the person making the report.
TSA currently provides the public with the ability to communicate
security concerns by contacting TSA's Contact Center (1-866-289-9673)
or through the TSA Web site (http://www.tsa.gov), by clicking on the
``Contact Us'' link at the top of the home page, clicking on the
``Security Issues'' link, and submitting an online form describing the
security-related issue (received by TSA as an e-mail). If someone
misses that link and scrolls on down the page, there is another heading
(``Security Violations and Concerns'') that provides an additional
opportunity to submit a report.
As a result of this rulemaking, the ``Security Violation and
Concerns'' section of the site will include a hyperlink back to the
``Security Issues'' form and the additional contact addresses
identified in this rule. Therefore, this analysis of costs and benefits
assumes that all Web-based reports under this rule will be through the
``Security Issues'' form on TSA's Web site. As noted, the public will
also be able to make reports by contacting TSA directly through a
designated phone number or submitting a report through the mail to a
designated address.
There is no accurate method for gauging how many additional e-mail
messages, telephone calls, and letters reporting transportation
security concerns these changes to the Web site could generate. While
estimating an accurate cost to the public of voluntarily reporting
security concerns to TSA is difficult, one can use fiscal year (FY)
2010 TSA Contact Center (TCC) data as a starting point to estimate the
cost of potential scenarios. For this analysis, we assumed that the
rule will incrementally expand the number of security-related telephone
calls and e-mail messages TSA received in FY 2010 by 25 percent.
In FY 2010, the TCC fielded 393 security-related telephone calls
that could be categorized as reporting a transportation-related
security problem, deficiency, or vulnerability. (While the TCC may
receive many more calls that a person has self-selected to be
``security-related,'' not all of those are within the scope of what is
anticipated to be relevant to this rule.) These calls are addressed by
security specialists who help determine whether the issue involves an
issue related to transportation security or other complaints or
concerns that the caller may have. They also determine whether the
information provided will fit within the scope of the rule. Issues
requiring action by TSA are routed to the appropriate TSA components.
The security specialists also route information relevant to sister
agencies to their designated points of contact. According to the TCC,
the average telephone conversation involving a security specialist
during FY 2010 lasted 3.25 minutes. For purposes of the NPRM, TSA
estimated the calls would last approximately 4 minutes.\14\ However,
the Transportation Security Operations Center (TSOC), which will start
fielding these calls in FY 2011, assumes that calls from the public as
a result of this rule will mostly come from a subset of callers who
want a receipt acknowledging their call; processing these calls may
require more detailed information than the average call. This primarily
includes the information needed to provide the person with a receipt,
which is not required for all calls received by TSOC. TSOC considers
ten minutes to be a reasonable estimate for the length of such a call.
If one projects that the public will place 98 additional calls (.25 x
393) as a result of the rule (for the purposes of this analysis, TSA
assumes that all of these
[[Page 22629]]
calls will be from individuals wanting a receipt and providing the
necessary contact information), then the public would spend 980 minutes
(98 calls at about 10 minutes per call) on the telephone with TSA. At
$19.32 per hour,\15\ the total annual cost to the public for the
additional telephone calls will be $316 ($19.32 per hour x 980 minutes/
60 minutes per hour).
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\14\ See 75 FR 43090.
\15\ For purposes of this rulemaking, TSA uses the May 2009
Bureau of Labor Statistics (BLS) mean hourly wage rate for all
Transportation and Material Moving Occupations (SOC Code 53-0000),
adjusted for inflation. To access this information, go to the
following BLS Web sites: http://data.bls.gov/cgi-bin/print.pl/oes/2009/may/naics2_48-49.htm and http://www.bls.gov/cpi/cpid1012.pdf.
The $19.00 mean hourly wage rate found at the first Web site is
converted to 2010 dollars by multiplying it times 1.0168, the amount
by which the Consumer Price Index for Urban Wage Earners and
Clerical Workers (CPI-W) rose between 2009 and 2010 (215.262/211.703
= 1.0168).
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To estimate the cost of contacting TSA electronically, this
analysis used other data collected by the TCC as a starting point. In
FY 2010 the TCC received 1,527 security-related e-mail messages from
customers who logged onto the TSA Web site and used the links described
above. TSA receives information submitted through the Web site in the
form of an e-mail. As noted under the analysis for phone calls, the TCC
may receive many more e-mails that a person has self-selected than are
within the scope of what is anticipated to be relevant to this rule.
The estimates reflect those e-mails that are relevant to the rule.
If one assumes that TSA will receive an additional 382 e-mail
messages (1,527 x .25) as a result of this rule and that the average e-
mail message will require thirty minutes to prepare, one can modify the
value-of-time formula used to calculate the FY 2010 cost of security-
related telephonic reports to TSA to estimate the cost to the public of
e-mailing its concerns: 382 e-mail messages x 30/60 hours per e-mail
message x $19.32 per hour = $3,690. TSA has doubled the time estimate
assumed in the NPRM due to the more detailed information one would
expect to be provided; a person who is reporting a security
vulnerability or deficiency is likely to have more information
regarding security requirements that are not being followed.\16\
Because the receipt mechanism for persons making reports through TSA's
Web site is automated, any person who reports through this mechanism
will receive a receipt if they provide contact information.
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\16\ See 75 FR 43091.
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The rule will also allow the public to report transportation-
related security problems, deficiencies, and vulnerabilities by regular
mail (the mailing address will be posted on the TSA Web site). As
previously noted, TSA assumes the majority of persons contacting TSA by
mail and requesting a receipt will be subset of the general population,
primarily made up of employees within the transportation sector seeking
a reporting mechanism that will provide them with documentation of
their report in the event they may need it in the future. In addition,
TSA also assumes that most persons will report by e-mail as they will
be provided with a more comprehensive verification of their report as
the automated e-mail will include the exact text that they submitted.
As a result, the estimated costs have been significantly reduced from
those provided in the NPRM. If one projects that this rule will
generate 50 letters per year and that it takes the average letter
writer 30 minutes to write a report and 15 minutes to mail it, the
value of the public's time for this exercise equates to $725 (50
letters x 45/60 hour per letter x $19.32 per hour). This increase in
time from the NPRM is consistent with that for the other reporting
mechanisms. When the cost of postage is included (50 letters x $.44 per
stamp = $22), using regular mail to report transportation security-
related problems, deficiencies, and vulnerabilities to TSA will cost
the public $747.
The projected cost of the three modes of communication--$316 for
telephone calls, $3,690 for Web-based communications, and $747 for
regular mail--is $4,753. As reporting under this rule is voluntary, 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 will incur
expenses in handling the increased volume of reports. Although it is
not feasible to accurately establish the number of additional
telephonic, e-mail, and regular mail reports this rule will generate,
TSOC is prepared to dedicate one full time equivalent (FTE) employee
(at an overall cost of $80,208 \17\ per year) to handle the increased
volume of communications. In addition to the labor costs associated
with responding to the increase in security-related contacts, TSA will
incur two non-labor expenses. This reduction from the estimates in the
NPRM \18\ is consistent with the reductions in estimates for the
public.
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\17\ Data from TSA's Office of Financial Management show that
this was the average amount of personal compensation and benefits
paid out in FY 2010 to a G-Band employee. The total comprises
$51,933 in base pay and $28,275 in benefits.
\18\ See 75 FR 43091.
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The hardware and software needed to implement the ``auto-response''
function for Web-based reports will cost $2,060 ($1,100 for a dedicated
desktop computer and $960 for software). This feature provides an
electronic receipt including the content of their report to anyone who
uses the ``Security Issues'' Web form on the TSA Web site to submit
security concerns (people who contact TSA by phone will be provided a
unique identifier number for the call).
Persons who submit reports by mail will receive a receipt in the
mail. If one projects that this rule will generate 50 letters per year
and that all the letters will have return addresses, the cost of
mailing a response will be $22 (50 letters x $.44 per stamp = $22).
Taken together, the estimated labor expense ($80,208) and receipt
processes ($2,060 for auto-response and $22 for mail) yield a total
annual cost to TSA of $82,290.\19\
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\19\ 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 electronic reporting.
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Benefits
This rulemaking provides the following benefits:
1. It reminds the public that TSA wants to receive these reports,
possibly 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.
2. It encourages employees and other persons who may hesitate to
make a report for fear of retaliation or other adverse action to obtain
the necessary documentation to support any future claims under 6 U.S.C.
1142, 49 U.S.C. 20109, 49 U.S.C. 31105, and 49 U.S.C. 42121.
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
[[Page 22630]]
jurisdictions. Individuals and States are not included in the
definition of a small entity.
This 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 will 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 will 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 (UMRA), Public Law 104-4,
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 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 final rule under the principles and criteria
of Executive Order 13132, Federalism. We determined that this action
will not have a substantial direct effect on the States, or 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, does 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 action 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.
List of Subjects in 49 CFR Part 1503
Administrative practice and procedure, Investigations, Law
enforcement, Penalties, Transportation.
The Amendments
For the reasons set forth in the preamble, the Transportation
Security Administration amends part 1503 in chapter XII of title 49,
Code of Federal Regulations to read as follows:
PART 1503--INVESTIGATIVE AND ENFORCEMENT PROCEDURES
0
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.
0
2. Add subpart A to part 1503 to read as follows:
Subpart A--General
Sec.
Sec. 1503.1 Scope.
Sec. 1503.3 Reports by the public of security problems,
deficiencies, and vulnerabilities.
Subpart A--General
Sec. 1503.1 Scope.
This part provides information on TSA's investigative and
enforcement procedures.
Sec. 1503.3 Reports by the public of security problems, deficiencies,
and vulnerabilities.
This section prescribes the reporting mechanisms that persons may
use in order to obtain a receipt for reports to TSA regarding
transportation-related security problems, deficiencies, and
vulnerabilities.
(a) Any person who reports to TSA a transportation security-related
problem, deficiency, or vulnerability--including the security of
aviation, commercial motor vehicle, maritime, pipeline, any mode of
public transportation, or railroad transportation--will receive a
receipt for their report if they provide valid contact information and
report through one of the following:
(1) U.S. mail to Transportation Security Administration HQ, TSA-2;
Attn: 49 CFR 1503.3 Reports; 601 South 12th Street; Arlington, VA
20598-6002;
(2) Internet at http://www.tsa.gov/contact, selecting ``Security
Issues''; or
(3) Telephone (toll-free) at 1-866-289-9673.
(b) Reports submitted by mail will receive a receipt through the
mail, reports submitted by the Internet will receive an e-mail receipt,
and reports submitted by phone will receive a call identifier number
linked to TSA documents held according to published record schedules.
To obtain a paper copy of reports provided by phone, the person who
made the report, or their authorized representative, must contact TSA
at the address identified in (a)(1) of this section within that period
and provide the identifier number.
(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.
(e) Immediate or emergency security or safety concerns should be
reported to the appropriate local emergency services operator, such as
by telephoning 911. Alleged waste, fraud, and abuse in TSA programs
should be reported to the Department of Homeland Security Inspector
General: telephone (toll-free) 1-800-323-8603, or e-mail
DHSOIGHOTLINE@dhs.gov.
Issued in Arlington, Virginia, on April 1, 2011.
John S. Pistole,
Administrator.
[FR Doc. 2011-9629 Filed 4-21-11; 8:45 am]
BILLING CODE 9110-05-P