Vetting of Certain Surface Transportation Employees

Federal RegisterMay 23, 2023

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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Parts 1500, 1530, 1570, 1572, 1580, 1582, 1584

[Docket No. TSA-2023-0001]

RIN 1652-AA69

Vetting of Certain Surface Transportation Employees

AGENCY:

Transportation Security Administration, DHS.

ACTION:

Notice of proposed rulemaking (NPRM).

SUMMARY:

The Transportation Security Administration (TSA) is proposing a regulation to implement provisions of the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/11 Act) that require security vetting of certain public transportation, railroad, and over-the-road-bus (OTRB) employees. In accordance with the 9/11 Act, TSA proposes to require security-sensitive employees of certain public transportation operators and railroads to undergo a Level 2 security threat assessment (STA) that includes an immigration check and terrorism watchlist check to determine whether the applicant may pose a security threat. Further, TSA proposes to require security coordinators of certain public transportation, railroad, and OTRB operators to undergo a Level 3 STA, which includes the Level 2 check plus a criminal history records check. TSA proposes appeal and waiver procedures for individuals who are adversely impacted by the vetting. Finally, TSA proposes to establish user fees to recover TSA's costs for vetting, as required by law.

DATES:

Submit comments on or August 21, 2023.

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. To avoid duplication, please use only one of the following methods:

•

Electronic Federal eRulemaking Portal: https://www.regulations.gov.

Follow the online instructions for submitting comments.

•

Mail:

Docket Management Facility (M-30), U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590-0001. The U.S. Department of Transportation (DOT), which maintains and processes TSA's official regulatory dockets, will scan the submission and post it to FDMS.

•

Fax:

(202) 493-2251.

See

SUPPLEMENTARY INFORMATION

section for format and other information about comment submissions.

FOR FURTHER INFORMATION CONTACT:

For program questions:

Victor Parker, Surface Division, Policy, Plans, and Engagement, TSA-28, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6002; telephone (571) 227-1039; email

VettingPolicy@tsa.dhs.gov.

For legal questions:

Christine Beyer, Chief Counsel's office, TSA-2, Transportation Security Administration, 6595 Springfield Center Drive, Springfield, VA 20598-6002; telephone (571) 227-3653; email

christine.beyer@tsa.dhs.gov.

SUPPLEMENTARY INFORMATION:

Public Participation

TSA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action, as well as on TSA's collections of information under the Paperwork Reduction Act as described further below. You may submit comments, identified by the TSA docket number for this rulemaking, to the

ADDRESSES

noted above. With each comment, please include this docket number at the beginning of your comments. You 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 in person submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing. If you would like TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard or envelope on which the docket number appears. TSA will stamp the date on the postcard and we will mail it to you.

All comments, except those that include confidential information and sensitive security information (SSI)

will be posted to

https://www.regulations.gov,

and will include any personal information you have provided. Should you wish your personally identifiable information redacted prior to filing in the docket, please clearly indicate this request in your submission. TSA will consider all comments that are in the docket 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.

“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.

Handling of Confidential or Proprietary Information and 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. Comments containing this type of information should be submitted separately from other comments, appropriately marked as containing such information, and submitted by mail to one of the addresses listed in the

FOR FURTHER INFORMATION CONTACT

section. TSA will take the following actions for all submissions containing SSI:

• 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 explaining that commenters have submitted such documents.

• TSA may include a redacted version of the comment in the public docket.

• TSA will treat requests to examine or copy information that is not in the public docket 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.

Privacy Act

Please be aware that anyone is able to search the electronic form of all comments in any of our dockets by the name of the individual who submitted (or signed the comment (

e.g.,

if submitted by an association, business, labor union, etc.) For more about privacy and the docket, review the Privacy and Security Notice for the FDMS at

https://www.regulations.gov/privacyNotice,

as well as the System of Records Notice DOT/ALL 14—Federal Docket Management System (73 FR

3316, January 17, 2008) and the System of Records Notice DHS/ALL 044—eRulemaking (85 FR 14226, March 11, 2020).

Reviewing Docket Comments and Documents

You can review TSA's electronic public docket at

https://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 items in TSA's public docket, you may visit this facility between 9 a.m. and 5 p.m., Monday through Friday, excluding legal holidays, or call (202) 366-9826. This DOT operations facility is located in the West Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue SE, Washington, DC 20590.

You can find an electronic copy of rulemaking documents through the internet by-searching the electronic FDMS web page at

https://www.regulations.gov;

or at

https://www.federalregister.gov.

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.

Abbreviations and Terms Used in This Document

ALJ—Administrative Law Judge

ATSA—Aviation and Transportation Security Act

CBP—U.S. Customs and Border Protection

CFR—Code of Federal Regulations

CHRC—Criminal History Records Check

CJIS—Criminal Justice Information Services

DHS—U.S. Department of Homeland Security

DOE—Determination of Eligibility

ESVP—Enrollment Services and Vetting Programs

FAST—Free and Secure Trade Program

FBI—Federal Bureau of Investigation

FDI—Final Determination of Ineligibility

HME—Hazardous Materials Endorsement

IDENT—Automated Biometrics Identification System

NPRM—Notice of Proposed Rulemaking

OTRB—Over-the-Road Bus

PDI—Preliminary Determination of Ineligibility

PDIIR—Preliminary Determination of Ineligibility with Immediate Revocation

SAVE—Systematic Alien Verification for Entitlements Program

SENTRI—Secure Electronic Network for Travelers Rapid Inspection Program

SSI—Sensitive Security Information

STA—Security Threat Assessment

TSA—Transportation Security Administration

TWIC—Transportation Worker Identification Credential

U.S.C.—United States Code

USCIS—U.S. Citizenship and Immigration Services

Table of Contents

I. Executive Summary

A. Purpose of the Regulation

B. Summary of Major Provisions

II. Background

A. Statutory and Regulatory History

B. Specific Provisions

1. Security-Sensitive Employees

2. Security Coordinators

3. IDENT and Rap Back

4. Identity Verification

5. Use of TSA Enrollment Centers

6. Vetting Structure

7. Effective Dates and Compliance

III. Analysis of Proposed Part 1530

A. Introduction

B. Proposed Subpart A—General

1. Proposed § 1530.1

2. Proposed § 1530.3

3. Proposed § 1530.5

4. Proposed § 1530.7

5. Proposed § 1530.9

6. Proposed § 1530.11

7. Proposed § 1530.13

C. Proposed Subpart B—Individual Enrollment Requirements Continuing Responsibilities

1. Introduction

2. Proposed § 1530.101

3. Proposed § 1530.103

4. Proposed § 1530.105

5. Proposed § 1530.107

6. Proposed § 1530.109

D. Proposed Subpart C—Reserved

E. Proposed Subpart D—Fees

1. Introduction

2. Costs

3. Populations

4. Fees

5. Proposed § 1530.301

6. Proposed § 1530.303

7. Proposed § 1530.305

8. Proposed § 1530.307

9. Proposed § 1530.309

F. Proposed Subpart E—Adjudication Procedures

1. Introduction

2. Proposed § 1530.401

3. Proposed § 1530.403

4. Proposed § 1530.405

5. Sections 1530.407, 1530.409, 1530.411—Reserved

6. Proposed § 1530.413

7. Proposed § 1530.415

8. Proposed § 1530.417

9. Proposed § 1530.419

G. Proposed Subpart F—Standards

1. Introduction

2. Proposed § 1530.501

3. Proposed § 1530.503

4. Proposed § 1530.505

5. Proposed § 1530.507

6. Proposed § 1530.509

H. Proposed Subpart G—Appeal and Waiver Procedures for Security Threat Assessments

1. Introduction

2. Proposed § 1530.601

3. Proposed § 1530.603

4. Exhaustion of Administrative Remedies

5. Proposed § 1530.605

6. Proposed § 1530.607

7. Proposed § 1530.609

8. Proposed § 1530.611

9. Proposed § 1530.613

IV. Analysis of Proposed Changes to Parts 1500, 1570, 1572, 1580, 1582, and 1584

A. Introduction

B. Proposed Changes to Part 1500

C. Proposed Changes to Part 1570

D. Proposed Changes to Part 1572

E. Proposed Changes to Part 1580

1. Proposed § 1580.301

2. Proposed § 1580.303

3. Proposed § 1580.305

4. Proposed § 1580.307

F. Proposed Changes to Part 1582

1. Proposed § 1582.201

2. Proposed § 1582.203

3. Proposed § 1582.205

4. Proposed § 1582.207

G. Proposed Changes to Part 1584

1. Proposed § 1584.201

2. Proposed § 1584.203

3. Proposed § 1584.205

4. Proposed § 1584.207

I. Executive Summary

A. Purpose of the Regulation

This proposed rulemaking would serve three purposes:

(1)

Surface transportation security vetting

. The NPRM proposes to implement requirements in the 9/11 Act

to vet certain public transportation, railroad, and OTRB employees:

The Implementing Recommendations of the 9/11 Commission Act, Public Law 110-53 (121 Stat. 266; Aug. 3, 2007).

• Conduct a “name-based security background check against the consolidated terrorist watchlist and an immigration check” for frontline public transportation employees

and frontline railroad employees.

9/11 Act, sec. 1411; codified at 6 U.S.C. 1140.

9/11 Act, sec. 1520.

• Require security coordinators of railroads

and OTRBs

to be U.S. citizens, unless TSA waives this requirement after an appropriate background check of the individual and a satisfactory review of the consolidated terrorist watchlist.

9/11 Act, sec. 1512; codified at 6 U.S.C. 1162(e)(2).

9/11 Act, sec. 1531; codified at 6 U.S.C. 1181.

(2)

Fees.

TSA is proposing an equitable fee schedule to recover the costs of vetting services. TSA must sustain vetting programs, like those proposed in this rulemaking, through user fees in accordance with 6 U.S.C. 469, Fees for Credentialing and Background Investigations in Transportation.

(3)

Redress.

The 9/11 Act provides that if TSA issues a regulation requiring operators to conduct vetting of public transportation

and railroad employees,

TSA must require the operators to provide appeal and waiver procedures, like the procedures TSA

established in the Transportation Worker Identification Credential (TWIC) program in accordance with 46 U.S.C. 70105 and codified at 49 CFR parts 1515, 1572. TSA proposes appeals, waivers, review by Administrative Law Judges (ALJs), and review by the TSA Final Decision Maker for individuals who are adversely affected by the vetting.

9/11 Act sec. 1414; codified at 6 U.S.C. 1143(d).

9/11 Act sec. 1522; codified at 6 U.S.C. 1170(d).

B. Summary of Major Provisions

In accordance with the 9/11 Act and risk-based principles, TSA proposes to require frontline or “security-sensitive” employees of public transportation and railroad operators to undergo a Level 2 STA, which includes an immigration check and a terrorism check and other analyses (terrorism/other analyses).

Specifically, sections 1411 and 1520 of the 9/11 Act require TSA to conduct terrorist and immigration status vetting of public transportation and railroad employees, similar to the check TSA conducted in 2006 in the maritime sector. In sections 1143 and 1170 of the Act, Congress defines a security background check as vetting that includes criminal, immigration and terrorist checks, and provides that if TSA issues a rulemaking to require operators to conduct security background checks, TSA must require use of the criminal standards and redress required by 46 U.S.C. 70105, and 49 CFR part 1572.

This portion of the STA is called “terrorism check and other analyses.” This portion of the STA may include searches of many data sources, such as the consolidated terrorist watchlist (TSDB), U.S. Marshal's Service wants and warrants, U.S. Department of State lost and stolen passports, and Interpol.

Further, TSA proposes to require security coordinators of public transportation, railroad, and OTRB operators to complete a Level 3 STA, which includes an immigration check, criminal check, and terrorism/other analyses check. Table 1 below provides a summary of these proposed vetting requirements. Also, TSA proposes a robust redress process for individuals who are deemed ineligible for a position as a result of the vetting, to ensure that they are not disqualified in error. Finally, TSA proposes user fees to cover the costs of TSA's vetting, as required by statute.

See

6 U.S.C. 469.

Table 1—Affected Population by Mode and STA Requirement

Mode

Risk level

Affected population

Proposed rule requirements

Terrorism/

other analyses

Immigration

check

CHRC

Freight Rail

High Risk

Security-Sensitive Employees

☐

Security Coordinators

☐

Non-High-Risk

Security-Sensitive Employees

Security Coordinators

☐

PTPR

High-Risk

Security-Sensitive Employees

☐

Security Coordinators

☐

Non-High-Risk

Security-Sensitive Employees

Security Coordinators

☐

OTRB

High-Risk

Security-Sensitive Employees

Security Coordinators

☐

Non-High-Risk

Security-Sensitive Employees

Security Coordinators

C. Costs and Benefits

Table 2 identifies estimated 10-year costs to certain freight railroad carriers, public transportation and passenger railroad (PTPR) operators, OTRB operators, and TSA; and the overall cost of this proposed rule.

Table 2—Cost of the Proposed Rule

Estimated costs

(millions, over 10 years,

discounted at 7 percent)

Freight Railroad

$31.43

Public Transportation and Passenger Railroads

(PTPR)

52.96

OTRB

0.92

TSA

1.27

Total

86.58

As compared to attacks carried out by passengers, attacks carried out by employees pose a higher likelihood of success and/or a larger impact due to employees' knowledge of the systems, infrastructure, vulnerabilities and operations. Also, employees possess unique access to critical operations and areas, which permits them to move with ease in sensitive areas where similar actions by passengers would be more readily identified as suspicious activity, and increases the opportunity and confidence to commit an attack. Known or suspected terrorists (KSTs) are more likely to be responsible for a disproportionate number of all attacks as compared to their proportion of the population, and thus moving KSTs and other higher-risk individuals out of the `insider' positions employees hold reduces risk, while affecting a very small percentage of all employees. Initial vetting inhibits applicants or existing employees from commencing or continuing their employment, which deters their ability to carry out an act. Recurrent vetting ensures employees who become threats can be removed quickly, reducing the overall net risk to this industry. While is it not possible to quantify the net risk reduction employee vetting creates, TSA's comprehensive vetting of transportation workers has effectively identified insider threats. The effort creates a meaningful reduction of risk of an insider attack, which benefits transportation security.

II. Background

A. Statutory and Regulatory History

Following the terrorist attacks of September 11, 2001, Congress created the National Commission on Terrorist Attacks Upon the United States (9/11 Commission).

The 9/11 Commission investigated the facts and circumstances relating to the attacks, and, on July 22, 2004, issued its Report.

Title VI, Intelligence Authorization Act for Fiscal Year 2003, Public Law 107-306 (116 Stat. 2383; Nov. 7, 2002).

The 9/11 Commission Report is available at

https://www.9-11commission.gov/.

In the Report, the 9/11 Commission recognized that transportation involves more than just aviation, noting that “[a]bout 6,000 agencies provide transit services through buses, subways, ferries, and light-rail service to about 14 million Americans.”

The 9/11 Commission also recognized that “[o]pportunities to do harm are as great, or greater, in maritime or surface transportation” as they are in aviation.

The Commission specifically noted the “use of insiders” as a possible terrorist tactic.

The Commission included in its report numerous recommendations for further action by the U.S. Government and other actors.

Report, p. 390-1.

Report, p. 391.

Report, p. 392.

Report, pp. 367-398.

In the 9/11 Act, Congress implemented many of the 9/11 Commission's recommendations. Congress requires TSA to issue regulations on security training, vetting, vulnerability assessments, and security plans for surface transportation entities. TSA is complying with the statute by issuing separate, but related rulemakings.

This rulemaking addresses the 9/11 Act requirements to conduct “security background checks” of certain public transportation, railroad carrier, and OTRB employees. For purposes of this rulemaking and consistent with common vetting terminology, TSA uses the term “security threat assessment (STA)” in place of “security background checks” and the terms have the same meaning.

See

Security Training for Surface Transportation Employees Final Rule, 85 FR 16456 (March 23, 2020), as amended by 85 FR 25315 (May 1, 2020), 85 FR 67681 (Oct. 26, 2020), and 86 FR 23629 (May 4, 2021) (Security Training Final Rule).

The 9/11 Act requires TSA to evaluate an individual in the STA process to identify “individuals who may pose a threat to transportation security or national security, or of terrorism.”

Individuals who may pose such threats are not eligible to perform security-sensitive or security coordinator functions. TSA proposes to use this standard set forth in the 9/11 Act for all individuals who apply for an STA under this rulemaking.

See

6 U.S.C. 1143(a)(1), 1170(a)(1).

Under the 9/11 Act, TSA must conduct an STA of frontline public transportation employees

and railroad employees

that includes a terrorism and immigration check. TSA calls this a Level 2 check. The 9/11 Act does not require a Level 2 check of frontline OTRB employees. The 9/11 Act also states that public transportation

and railroad

employees who are subject to security vetting should have an adequate redress process available to them to ensure that they are not removed or deemed ineligible in error. Finally, the 9/11 Act requires security coordinators of railroads

and OTRB

owner/operators to be U.S. citizens, unless TSA waives this requirement after conducting an appropriate STA.

See 6 U.S.C. 1140.

9/11 Act sec. 1520.

See

6 U.S.C. 1143(d).

See

6 U.S.C. 1170(d).

See

6 U.S.C. 1162(e)(2).

See

6 U.S.C. 1181(e)(2).

TSA has extensive responsibility for and experience in vetting individuals who access the nation's transportation system. TSA has broad general authority to “require background checks for airport security screening personnel, individuals with access to secure areas of airports, and other transportation security personnel.”

In addition, there are statutes that require TSA to conduct STAs of specific individuals, such as: (1) certain airport and airline workers;

(2) certain merchant mariners and individuals who require unescorted access to secure areas of vessels and maritime facilities;

(3) individuals seeking hazardous materials endorsements (HMEs) on commercial driver's licenses issued by the States;

and (4) applicants for trusted traveler status to participate in the TSA PreCheck® Application Program.

See

49 U.S.C. 114(f)(12).

49 U.S.C. 44936; 49 CFR 1542.209, 1544.229, 1544.230.

See

46 U.S.C. 70105; 49 CFR part 1572.

See

49 U.S.C. 5103a; 49 CFR part 1572.

See

49 U.S.C 114 note; 78 FR 72922 (Dec. 4, 2013).

An STA is an inquiry to confirm an individual's identity and determine whether the individual poses or may pose a security threat to transportation or national security, or of terrorism. Individuals who TSA determines do not to pose a threat may be eligible for access to transportation infrastructure or assets, or other privileges and credentials. An STA consists of one or more checks against certain data sources, which may include terrorist or other government or intelligence watchlists, Interpol, immigration records, and criminal history records. As explained below, the specific checks TSA performs vary depending on the governing statutory requirements and the security needs associated with the access, privilege, or credential the individual seeks. In this NPRM, we propose the vetting standards and redress required by the 9/11 Act. In addition, we propose to conduct recurrent vetting and renewal of the STA every 5 years. The recurrent vetting and STA renewal is not required by the 9/11 Act, but is necessary to create a useful and effective inquiry into these transportation workers.

B. Specific Provisions

1. Security-Sensitive Employees. Like the 9/11 Act

training

requirements that were the subject of a separate

rulemaking,

the 9/11 Act

vetting

requirements refer to “frontline” employees (that is, “public transportation frontline employees” in section 1411 and “frontline railroad employees” in section 1520). The 9/11 Act provides definitions for “frontline employee” within each mode of transportation.

For instance, the statute defines the term “railroad frontline employees” to mean security personnel, dispatchers, locomotive engineers, conductors, trainmen, other onboard employees, maintenance and maintenance support personnel, bridge tenders, and any other railroad employees that the Secretary of Homeland Security determines should receive security training. The statute provides similar definitions for OTRB and public transportation operations.

See

Security Training for Surface Transportation Employees Final Rule, 85 FR 16456 (March 23, 2020), as amended by 85 FR 25315 (May 1, 2020), 85 FR 67681 (Oct. 26, 2020), and 86 FR 23629 (May 4, 2021).

See

6 U.S.C. 1151(6) (railroads), 6 U.S.C. 1131(4) (public transportation), and 6 U.S.C. 1151(5) (OTRB).

As part of the Security Training rulemaking, TSA adopted the term “security-sensitive employees” instead of “frontline employees” to capture the individuals who are subject to the 9/11 Act requirements.

TSA analyzed the employees listed in the 9/11 Act's definitions of “frontline employees” and considered whether employees are in a position to detect suspicious activity because of where they work, their interaction with the public, or their access to information. TSA also considered which individuals may need to know how to report or respond to these potential threats. As a result of this analysis, TSA determined that employees who perform functions with a direct nexus to, or impact on transportation security, should be called “security-sensitive employees” rather than “frontline employees.”

See

81 FR 91336, 91353-91355; 85 FR 16456, 16475.

In this rulemaking, consistent with the 9/11 Act (which, as noted above, uses the “frontline employee” terminology with respect to both training and vetting), and the applicability and terminology of the Security Training rulemaking, TSA proposes to implement the requirement to vet “frontline” rail and public transportation employees by issuing vetting regulations that apply to the same population of “security-sensitive” rail and public transportation employees covered by the Security Training rulemaking.

The following tables, taken from the Security Training rulemaking, describe the security-sensitive functions that, under this rule, would be subject to new vetting requirements.

See

49 CFR 1580.3, 1582.3, and 1584.3 in the Security Training Final Rule.

Note that we are not providing a chart of the OTRB employees who are considered “security-sensitive” because the statute does not require TSA to conduct STAs of OTRB security-sensitive employees, and TSA has determined that it is unnecessary to impose such a requirement at this time.

Table 3—Security-Sensitive Functions for Freight Rail

Categories

Security-sensitive job functions for Public Transportation and Passenger Railroads (PTPR)

A. Operating a vehicle

1. Employees who—

a. Operate or control the movements of trains, other rail vehicles, or transit buses.

b. Act as train conductor, trainman, brakeman, or utility employee or performs acceptance inspections, couples and uncouples rail cars, applies handbrakes, or similar functions.

2. Employees covered under the Federal hours of service laws as “train employees.”

See

49 U.S.C. 21101(5) and 21103.

B. Inspecting and maintaining vehicles

Employees who—

1. Perform activities related to the diagnosis, inspection, maintenance, adjustment, repair, or overhaul of electrical or mechanical equipment relating to vehicles, including functions performed by mechanics and automotive technicians.

2. Provide cleaning services to vehicles owned, operated, or controlled by an owner/operator regulated under this subchapter.

C. Inspecting or maintaining building or transportation infrastructure

Employees who—

1. Maintain, install, or inspect communication systems and signal equipment related to the delivery of transportation services.

2. Maintain, install, or inspect track and structures, including, but not limited to, bridges, trestles, and tunnels.

3. Provide cleaning services to stations and terminals owned, operated, or controlled by an owner/operator regulated under this subchapter that are accessible to the general public or passengers.

4. Provide maintenance services to stations, terminals, yards, tunnels, bridges, and operation control centers owned, operated, or controlled by an owner/operator regulated under this subchapter.

5. Employees covered under the Federal hours of service laws as “signal employees.”

See

49 U.S.C. 21101(4) and 21104.

D. Controlling dispatch or movement of a vehicle

Employees who—

1. Dispatch, report, transport, receive or deliver orders pertaining to specific vehicles, coordination of transportation schedules, tracking of vehicles and equipment.

2. Manage day-to-day management delivery of transportation services and the prevention of, response to, and redress of service disruptions.

3. Supervise the activities of train crews, car movements, and switching operations in a yard or terminal.

4. Dispatch, direct, or control the movement of trains or buses.

5. Operate or supervise the operations of moveable bridges.

6. Employees covered under the Federal hours of service laws as “dispatching service employees.”

See

49 U.S.C. 21101(2) and 21105.

E. Providing security of the owner/operator's equipment and property

Employees who—

1. Provide for the security of PTPR equipment and property, including acting as a police officer.

2. Patrol and inspect property of an owner/operator regulated under this subchapter to protect the property, personnel, passengers and/or cargo.

F. Loading or unloading cargo or baggage

Employees who load, or oversee loading of, property tendered by or on behalf of a passenger on or off of a portion of a train that will be inaccessible to the passenger while the train is in operation.

G. Interacting with travelling public (on board a vehicle or within a transportation facility)

Employees who provide services to passengers on-board a train or bus, including collecting tickets or cash for fares, providing information, and other similar services. Including:

1. On-board food or beverage employees.

2. Functions on behalf of an owner/operator regulated under this subchapter that require regular interaction with travelling public within a transportation facility, such as ticket agents.

H. Complying with security programs or measures, including those required by Federal law

1. Employees who serve as security coordinators designated in § 1570.201 of this subchapter, as well as any designated alternates or secondary security coordinators.

2. Employees who—

a. Conduct training and testing of employees when the training or testing is required by TSA's security regulations.

b. Manage or direct implementation of security plan requirements.

The 9/11 Act uses the term `employees' when discussing the individuals who must undergo an STA. However, TSA understands this term to include any individual who performs the security-sensitive functions outlined in the charts above or acts as a security coordinator, regardless of whether they have a strict employer/employee relationship with the operator. If an operator enters into a contract with a company to provide on-board food and beverage service on public transportation, as described in Line G in the chart above, the individuals who perform those security-sensitive services are in positions to create security vulnerabilities regardless of whether they are `employees' or authorized representatives, including contract personnel, of the operator.

TSA defines an authorized representative in 49 CFR 1500.3 as a person who is not a direct employee of the operator, but is authorized to act on the operator's behalf to perform required security measures. The term `authorized representative' includes agents, contractors, and subcontractors. Also, TSA defines contractor in 49 CFR 1570.3 as a person or organization that provides a service for an owner/operator regulated under this subchapter consistent with a specific understanding or arrangement. The understanding can be a written contract or an informal arrangement that reflects an ongoing relationship between the parties.

For purposes of this proposed rulemaking, TSA intends that an employee or authorized representative (including contractor) of an operator who performs security-sensitive functions or acts as a security coordinator would be subject to the vetting requirements set forth in the 9/11 Act. TSA believes Congress intends TSA to apply the same level of scrutiny to employees or authorized representatives (including contractors) who perform these security functions. An alternate view in which an authorized representative performing security functions would not be subject to the STA an employee must undergo for performing the same functions would undermine the purpose of the 9/11 Act provisions and create obvious security risks. In all modes of transportation where TSA requires individuals who perform security functions or have access to secured areas to undergo an STA, an employer/employee relationship is not required to trigger the STA. For purposes of the vetting standards TSA administers, the individual's access or function that can impact the security of operations is the factor that determines whether an STA is required. If TSA adopted standards in which an employer could evade vetting requirements altogether by using

authorized representatives/contractors, the vetting framework would be a sieve permitting individuals with bad intent to move undetected in the transportation system.

The 9/11 Act provides that TSA must complete a “name-based security background check against the consolidated terrorist watchlist and an immigration status check”

that is similar to the threat assessment screening program that TSA conducted for maritime employees and longshoremen pursuant to a notice issued by the U.S. Coast Guard (USCG) in 2006.

That Notice required port facility owner/operators to provide biographic information of all longshoremen and other individuals who enter the port regularly on spreadsheets to the USCG. The USCG then delivered the information to TSA, and TSA conducted a name-based terrorism and immigration status check using the biographic information provided. The Notice required facility operators and unions to “provide, on a continuing basis, the above-listed information for all new facility employees or longshoremen in a timely manner.”

The use of spreadsheets was necessary because TSA had not yet established enrollment centers to collect the necessary information electronically. TSA conducted this vetting while preparing the TWIC rulemaking that established the enrollment and vetting process it now uses for maritime employees. After publication of the Notice, TSA and USCG issued a joint rulemaking in January 2007 that established the TWIC vetting program. The rule established tiers of vetting, disqualification standards, and the requirement to renew the STA every 5 years. Once the TWIC rule became effective, it supplanted any vetting that was being done under the Notice.

9/11 Act, sec. 1411, 1520.

71 FR 25066 (April 28, 2006).

Id. at 25067.

While this process achieved the purpose of conducting vetting of the maritime workforce, it was resource-intensive and subject to errors due to the manual data collection and entry process. Since 2006, TSA's enrollment and vetting capabilities have matured substantially, and the new electronic processes are faster, more accurate, and more efficient. Also, various terrorist databases administered by other agencies have matured and grown. TSA is better positioned now to collect the necessary data and conduct recurrent

(daily) vetting electronically. Therefore, TSA proposes to conduct the STA called for in the 9/11 Act using the improved procedures and capabilities we now possess and use regularly in other vetting programs. Also, TSA proposes to conduct recurrent vetting of the terrorism/other analysis check for this population, as TSA does for all other vetting programs. A one-time vet of names would be viewed as substandard and the cost reduction would not justify the loss of security benefits. All of the vetting databases change daily, and thus a snapshot of a workforce in place for one day in time serves minimal long-term security benefit. An individual who passes a terrorism check Monday, may be newly identified as a threat and appear on a terrorist watchlist Tuesday. TSA's recurrent vetting does not require the vetted individual to perform any additional efforts; TSA's systems simply continue to run the biographic data collected against the watchlists each time they are amended, permitting TSA to conduct an investigation if any new information is discovered during the course of an individual's authorized access to indicate that they may pose a security threat. While the 9/11 Act does not expressly require recurrent vetting or renewal of the STA, TSA is authorized

to use its discretion and expertise in vetting to propose these procedures. Moreover, we believe Congress fully intends that TSA establish programs that are effective in identifying risks to transportation security.

The term `recurrent vetting' means TSA vets a name against the database each time the database is amended with new or revised information. This typically happens on a daily basis, and often more than once a day. TSA continues to recurrently conduct the terrorism check for the duration of the STA, which is typically 5 years.

See

49 U.S.C. 114(f).

Consistent with the 9/11 Act, TSA proposes to require security-sensitive employees of covered public transportation and railroad operators to undergo a Level 2 check that includes an immigration check and terrorism/other analyses check. For the terrorism/other analyses check, TSA reviews biographic information, documents, and databases to confirm an individual's identity, and searches government and non-government databases, including terrorist watchlists, criminal wants and warrants, Interpol, and other domestic and international sources, relevant to determining whether an individual may pose or poses a threat to transportation or national security, or of terrorism. If TSA determines that the individual poses or may pose a threat, the individual is not eligible for the security-sensitive position.

TSA conducts the terrorism/other analyses check recurrently for the duration of the STA, which is 5 years in most TSA vetting programs, and we propose the same for surface employees. Thus, if an individual initially “passes” the STA, but is later placed on a watchlist, TSA can quickly take appropriate action to disqualify the worker or otherwise minimize the threat.

The immigration check TSA proposes for security-sensitive employees would verify that the individual is a U.S. citizen or national, or a non-citizen who is a lawful permanent resident, refugee, asylee, lawful nonimmigrant, paroled into the U.S., or is otherwise authorized to work in the U.S. TSA conducts immigration checks by using the U.S. Citizenship and Immigration Services' (USCIS) Systematic Alien Verification for Entitlements (SAVE) Program. The SAVE Program is a government system designed to assist Federal, State, tribal, and local government agencies in determining an individual's immigration category to ensure that authorized individuals lawfully receive benefits or licenses.

As noted above, the 9/11 Act does not require TSA to conduct STAs of OTRB security-sensitive employees, and we are not proposing a Level 2 check of these individuals in this NPRM. However, TSA is considering adding that requirement in the final rule and invites comment from industry stakeholders on such a requirement. TSA is concerned that new terrorism-related tactics have emerged since passage of the 9/11 Act, including the use of vehicles in crowds to injure and kill innocent pedestrians. Beginning with the attack in Nice, France in 2016, vehicle ramming attacks have escalated. In 2017, 17 vehicle ramming attacks throughout the world were verified as terrorist-based, resulting in 173 fatalities and 667 injuries.

Moreover, buses, including those used for OTRB routes, are often provided extraordinary access and proximity to special events, athletic games, concerts or shopping venues, as a convenience to event-goers and as a traffic congestion tool for organizers. An “insider,” such as an OTRB driver, would have greater opportunity to harm event attendees by using a vehicle-borne improvised explosive device or simply conducting a ramming attack at passenger staging areas. The opportunity for harm using an OTRB may be greater than with use of a public transportation vehicle because OTRB operations include interstate business, which requires the vehicles to be capable of travelling much greater distances with much

heavier loads than transit buses. As a result, the typical OTRB is larger, heavier, and equipped with underfloor luggage storage areas not found in transit buses. Based upon its design, the OTRB is capable of transporting large volumes of dangerous materials that could be used in a terrorist attack.

TSA estimates that the addition of OTRB security-sensitive employee vetting would affect an additional estimated 47,423 OTRB employees, compared with the current public transportation/passenger rail population of approximately 179,337 and freight rail population estimated at 122,236. TSA estimates that the total annualized cost of compliance would increase by $2.2 million.

TSA invites comment on requiring Level 2 vetting for OTRB security-sensitive employees as part of this rulemaking. TSA has broad statutory authority to assess the need for and require vetting of transportation workers.

Under this authority, TSA may require OTRB workers to undergo the same vetting that we are proposing to require for security-sensitive public transportation and railroad workers. We invite stakeholders to comment on the relative security risks that are associated with OTRB operations, including insider threats and public sector vulnerabilities. Also, TSA invites comment and data on the costs to owner/operators and individuals as a result of new vetting requirements, and ways to reduce costs.

See

49 U.S.C. 114(f).

2. Security Coordinators.

In the Security Training rulemaking, TSA requires covered public transportation, railroad, and OTRB owner/operators to employ security coordinators.

Security coordinators perform important security functions, including coordinating the owner/operator's security procedures internally and with appropriate law enforcement and emergency response agencies. These individuals typically have access to SSI, Personally Identifiable Information and sensitive information from government threat briefings, all of which require responsible handling. For these reasons, TSA proposes to require a more comprehensive Level 3 STA for security coordinators. TSA proposes that security coordinators must successfully complete a fingerprint-based criminal history records check (CHRC) in addition to the immigration and terrorism/other analyses checks. TSA requires security coordinators in other modes of transportation and certain individuals with access to SSI to undergo this more thorough STA as well.

See

TSA is proposing the same CHRC standards that currently apply in the TWIC and HME programs, codified at 49 CFR part 1572, for the Level 3 STA in this rulemaking. In the 9/11 Act, Congress provided that if TSA chose to require a CHRC for these surface workers, the TWIC/HME standards for CHRCs and redress should apply.

Also, TSA proposes to codify the redress procedures in place for TWIC and HME applicants that are currently codified in 49 CFR part 1515, for security coordinators covered by this NPRM. Depending on the nature of the disqualification, individuals may appeal TSA's eligibility decision by asserting that the records on which TSA made its decision are incorrect; apply for a waiver of the criminal standards by asserting that the individual is rehabilitated; appeal TSA's waiver denial to an Administrative Law Judge; or seek review by the TSA Decision Maker.

See

6 U.S.C. 1143(c)-(d) for public transportation; 6 U.S.C. 1170(c)-(d) for railroads. Because TSA is conducting the vetting, rather than requiring the operator to do so, TSA would implement the redress standards Congress intended to apply to individuals who receive adverse vetting results, and not the operators.

The 9/11 Act provides that an individual serving as a security coordinator for a rail carrier or an OTRB owner/operator must be a citizen of the United States, unless TSA conducts an STA in place of the citizenship requirement.

TSA proposes more thorough vetting for security coordinators, and this level of vetting satisfies the 9/11 Act as a substitute for the U.S. citizenship requirement. The security coordinator vetting requirements would apply to all rail carrier and OTRB security coordinators, including individuals who are not U.S. citizens.

See

6 U.S.C. 1162(e)(2), 1181(e)(2).

3. Rap Back and IDENT.

For all STAs that require a CHRC, TSA plans to conduct the CHRC through the Federal Bureau of Investigation (FBI), as is customary. Also, TSA plans to implement the FBI's Criminal Justice Information System (CJIS) “Rap Back” service for these individuals. Rap Back enables TSA to receive new criminal history information after the initial submission of fingerprints. Prior to the implementation of Rap Back, TSA had to submit new fingerprints and fees to obtain any new criminal history on an individual. The Rap Back service provides a “recurrent” criminal vetting capability that will enhance security significantly by providing TSA with timely criminal history information, rather than waiting for long periods, sometimes several years, to obtain the most recent criminal information. With Rap Back, TSA can determine that an individual who initially passed the CHRC and was eligible for access has become ineligible due to a recent disqualifying criminal offense. Rap Back has become an integral part of a CHRC and is now the industry standard for criminal vetting. TSA has implemented Rap Back for other vetting programs such as airport and aircraft operator employees and TWIC holders, and proposes to use it for the CHRCs that would be conducted under this proposed rule. The implementation of Rap Back will not affect the type or amount of information TSA must collect from each individual at enrollment.

TSA also plans to submit the fingerprints to the Automated Biometrics Identification System (IDENT), which is operated by the DHS's Office of Biometric Identity Management. IDENT is the Departmental biometric repository and provides additional, important information for TSA to use as part of the vetting process.

4. Identity (ID) Verification.

TSA is proposing to require in-person ID verification at a TSA enrollment center as part of the vetting process. Accurately verifying the identity of each individual whom TSA vets remains one of the most important aspects of combatting insider threats and fraud. In-person ID verification provides a higher level of confidence that individuals are who they claim to be. TSA's enrollment personnel are trained to examine documents for evidence of fraud and may use electronic software that scores the identity documents for fraud. Also, if the documents presented are of concern to the enrollment agents, the agents can flag them for further analysis during the adjudication process, when adjudicators can compare the biographic information presented with other government or public records.

TSA considered proposing an entirely on-line ID verification and enrollment process, particularly where there is no need to collect fingerprints or take a photograph. However, TSA believes on-line ID verification creates opportunities for fraud relative to TSA's capacity to detect fraud at a physical enrollment center. TSA invites comments from stakeholders on potential ways to instill the same or greater level of reliability in on-line ID verification as we have for in-person ID verification.

5. Use of TSA enrollment centers.

TSA proposes in this rulemaking to use its established enrollment process for vetting the individuals covered by this rule. TSA operates a network of more than 300 enrollment centers that are widely dispersed throughout the United States and abroad, and currently service TSA's TWIC, HME, and TSA PreCheck® programs. In addition to the stationary sites, TSA's enrollment contractor offers opportunities for setting up mobile enrollment sites at specific workplaces. Each employer would be able to contact TSA's provider directly to discuss the number of employees who must enroll, potential locations, whether the provider would charge a fee for the service, and other details necessary to finalize an on-site, mobile enrollment center. These mobile sites minimize work disruption and employee travel time to an enrollment center. Also, employers can ensure that the entire workforce enrolls in a finite, relatively short period of time.

TSA's contractor also provides employers the capability to conduct their own enrollments. This enrollment method is called an “authorized non-public enrollment capability.” If an employer is interested in hosting their own enrollment center to service their employees, they work directly with the contractor to reach a mutually acceptable agreement regarding the requirements and any associated costs for this arrangement. Employers would provide the enrollment center space and resources (such as Trusted Agents to act as enrollment personnel) to operate the enrollment center. The space and personnel must meet the contractual requirements, which include internet connectivity, sufficient furniture, and privacy screens to protect an applicant's personal information as it is entered into the enrollment system. The employer's Trusted Agents would have to undergo a Level 3 STA, given their access to personally identifiable information, just as TSA's contractor Trusted Agents do. TSA's contractor would provide the enrollment hardware, software, and other equipment required to conduct enrollments. Additionally, the contractor would provide training and quality assurance oversight for the authorized non-public enrollment center. The agreement to operate an authorized non-public enrollment center is a contract between the interested employer and TSA's contractor, and not an agreement with TSA directly. Under this scenario, the owner/operators are not `regulated' by TSA as an enrollment provider, but work directly with the contractor and ensure that they satisfy the contractual requirements.

TSA considered the alternative of requiring or permitting owner/operators subject to this NPRM to act as enrollment providers, rather than using the TSA enrollment contractor for these services. Under this scenario, the owner/operators would be directly regulated by TSA to meet standards that are similar to the contractual requirements TSA and TSA's enrollment provider have developed. The owner/operators would provide their own trained Trusted Agents to collect information and fees from STA applicants and develop secure connections to TSA's systems that meet all Federal cyber security requirements. The employers would be required to ensure that the Trusted Agents adhere to minimum enrollment standards for verifying identity, protecting personal information, accurately collecting biometric and biographic information, and processing TSA's fees correctly. This alternative would eliminate the need for employees to travel to an enrollment site outside the workplace. However, owner/operators would be subject to compliance inspections and potentially civil penalties if their enrollment procedures were noncompliant. Also, the owner/operators would have to bear the significant costs associated with establishing and maintaining the electronic systems and staff to conduct enrollment. An owner/operator would have to undergo significant system testing, certification, and accreditation to connect to TSA's vetting systems to meet heightened Federal security and privacy requirements, and maintain a high level of security and performance to remain certified. Firewalls would have to be developed and used to ensure that an owner/operator could access only their employee data, and to prevent any damage to TSA's systems if the owner/operator's system malfunctioned. Given the nature of cyber threats and capabilities, TSA's previous experience with shared enrollment roles, and the extremely sensitive information that must be transmitted, TSA is currently unwilling to permit private employers to connect to its vetting systems.

TSA invites public comment on using TSA enrollment services or permitting owner/operators to conduct enrollment for this population.

6. Vetting structure.

In this rulemaking, TSA proposes to add a new part 1530 where the vetting standards, fees, and redress procedures would be codified. TSA proposes to organize all facets of the vetting process in one part for the convenience of the parties who must undergo vetting, and to aid in providing consistent standards and fees. TSA currently operates approximately 30 different vetting programs, such as the aviation workers (airport and aircraft owner/operators), TWIC, HME, and TSA PreCheck® programs and proposes to leverage the experience and best practices from them in new part 1530.

As discussed above, TSA proposes three “levels” of STAs, labeled Level 1, Level 2, and Level 3. The “lowest” level STA (Level 1) would provide the minimum vetting TSA would conduct and the “higher” levels (Level 2 and Level 3) would provide increased scrutiny, given statutory requirements and the risks associated with the functions that an individual performs.

This modular, standardized approach would increase the ability for individuals to reuse all or part of an earlier STA to satisfy a later STA requirement. For example, an employee who successfully completes a Level 2 STA for a public transportation agency will be able, in most circumstances, to use that Level 2 STA for a position that requires a Level 2 STA with a railroad operator, as long as the STA has not expired. As described below, all STAs would expire at the end of 5 years. Also, even if the entire STA is not comparable, one or more of the checks that comprise the STA may be re-usable. Consider the example of a security-sensitive employee for a public transportation operator who successfully completes a Level 2 STA, and who subsequently takes a job as a security coordinator, which would require a Level 3 STA under this rulemaking. Even though the Level 2 and Level 3 STAs are different and thus not comparable in their entirety, they nonetheless share certain checks in common. In this example, both levels of STA require an immigration check and terrorism/other analyses check. TSA would be able re-use the earlier terrorism/other analyses and immigration checks (assuming they are still valid) for purposes of the second STA. This means the individual would only have to complete the CHRC required for the Level 3 STA. Note that the Level 3 STA would expire when the Level 2 STA expired.

7. Effective dates and compliance.

TSA recognizes that this rulemaking would affect many surface transportation owner/operators and many individuals who have not previously had to comply with security vetting requirements. There may be logistical issues involved with achieving initial compliance, including implementing new management

policies, employee education, and related administrative tasks. Therefore, TSA proposes to take a risk-based, phased approach to implementation of this rule. TSA anticipates that there are far fewer security coordinators than security-sensitive workers, and understands that security coordinators play a more critical role in the overall security regime contemplated by the 9/11 Act. For these reasons, TSA proposes an implementation period of 6 months for requirements relating to security coordinators, and 12 months for requirements relating to security-sensitive employees. These timeframes represent our initial judgment about how to balance security against the burden on regulated parties. TSA invites comment on how the rule's requirements should be phased in and become effective, including the appropriate timeframes.

III. Analysis of Proposed Part 1530

A. Introduction

Proposed part 1530 would provide a complete framework for conducting vetting, collecting user fees, and administering appeals and waivers. TSA is using 49 CFR part 1515, which currently applies to individuals required to undergo STAs for TWIC, HME, or Indirect Air Carrier credentials, as a model for proposed part 1530. Proposed 1530 includes organizational and language improvements over part 1515 to address issues that TSA has become aware of over time, but it is substantively very similar to part 1515. The proposed procedures and standards for conducting STAs set out in part 1530 would apply to the surface transportation owner/operators and employees covered by this rulemaking. When finalized, part 1530 will address these surface workers and TSA will take the appropriate regulatory action to apply part 1530 to the populations currently covered by 1515.

We propose to organize part 1530 into six subparts. Subpart A would address topics generally applicable to the STA process, such as definitions. Each subsequent subpart would address a particular stage in the STA process. Subpart B would focus on the individual, addressing topics such as the information he or she must provide when applying for the STA, procedures for verifying the individual's identity and immigration category in the United States, procedures for collecting fingerprints, and establishing the individual's continuing responsibilities throughout the process. Subpart C would be reserved, and subpart D would address the fees necessary to recover the costs of conducting STAs, and how TSA must process the fees. Subpart E would set out the procedures that TSA proposes to use to conduct the various checks that comprise an STA, such as how TSA would conduct a CHRC or immigration check. Subpart F would establish the standards or criteria that TSA uses to adjudicate the results of the checks conducted during the STA. For example, a section of subpart F would explain the lists of crimes TSA would use to determine whether the individual has a disqualifying criminal conviction. Subpart G would establish the appeal and waiver procedures for individuals who receive an adverse STA result.

B. Proposed Subpart A—General

1. Proposed § 1530.1.

This section would set out the scope of the proposed part. Paragraph (a) would establish that part 1530 applies to individuals required to apply for an STA. In this rulemaking, this includes individuals who perform security-sensitive functions and are required to receive security training under 49 CFR 1580.101 (rail) and 49 CFR 1582.101 (public transportation, passenger rail), or act as security coordinators of owner/operators regulated under parts 1580, 1582, and 1584.

Paragraph (b) would establish that part 1530 applies to operators who must ensure that individuals who perform security-sensitive functions in rail and public transportation, or act as security coordinators for the owner/operators regulated under parts 1580, 1582, and 1584, as established in the Security Training rulemaking.

2. Proposed § 1530.3.

In this section, TSA proposes definitions for key terms used in part 1530, and proposes that the definitions from parts 1500, 1503, 1540, 1570, and 1572 apply if those terms appear in part 1530. TSA proposes a definition for “individual” to accurately identify the person who applies for the STA, holds a valid STA, or is seeking redress. TSA also proposes definitions for standard redress terms that are consistent with 49 CFR 1515.3 and are largely self-explanatory.

TSA is proposing to add a definition to part 1530 for the term “incarceration.” Currently, TSA has defined “incarceration” as well as “imprisoned/imprisonment” in 49 CFR 1570.3, but TSA believes two definitions for this concept are confusing and unnecessary. We propose to eliminate “imprisoned/imprisonment” and revise the definition of incarceration for part 1530. The new proposed definition of “incarceration” means under the custody of a bureau of prisons and confined to a prison, jail, or institution for the criminally insane pursuant to a sentence imposed as the result of a criminal conviction or finding of not guilty by reason of insanity. Time spent under the custody of a bureau of prisons or confined or restricted to a half-way house, treatment facility, home incarceration, or similar institution, pursuant to a sentence imposed as the result of a criminal conviction or finding of not guilty by reason of insanity, constitutes incarceration for purposes of this rule. The primary difference between this proposed definition and the current definitions of incarceration and imprisoned in 49 CFR 1570.3 is that the definition of incarceration now explicitly includes a sentence to home confinement as a result of a criminal conviction or finding of not guilty by reason of insanity.

3. Proposed § 1530.5.

This section would define the three “levels” of STAs that TSA proposes to conduct. Each STA level would be generically defined in terms of the particular kinds of vetting (called “checks”) that comprise the level.

A “Level 1” STA would consist of a terrorism check and other analyses (referred to as `terrorism/other analyses check' throughout the preamble of this NPRM). TSA is not proposing use of a Level 1 STA in this NPRM, but may propose it for other populations in the future. A “Level 2” STA would consist of the terrorism/other analyses and immigration checks. A “Level 3” STA would consist of the checks required for a Level 2 STA, plus a CHRC. In accordance with the 9/11 Act, TSA proposes that the security-sensitive employees, as described in the Surface Training rulemaking and codified in 49 CFR parts 1580, 1582, and 1584, would be required to undergo a Level 2 STA. TSA proposes to require security coordinators under 49 CFR parts 1580, 1582, and 1584 to undergo a Level 3 STA.

4. Proposed § 1530.7.

This section proposes a standard duration of 5 years for the STAs that TSA conducts and the associated determinations of eligibility (DOE) that TSA issues. This 5-year term begins on the date TSA completes the STA, determines the individual is eligible for the security-sensitive or security coordinator position, and issues a DOE. This timeframe aligns with similar governmental programs such as Top Secret and Q security clearances issued by the Office of Personnel Management; other TSA vetting programs such as TWIC and HME; and U.S. Customs and Border Protection's (CBP)'s Trusted Traveler programs, such as Free and Secure Trade (FAST),

NEXUS, Secure Electronic Network for Travelers Rapid Inspection (SENTRI), and Global Entry.

TSA proposes that the general 5-year term would be subject to two exceptions. The exceptions would apply if: (1) an individual uses a comparable STA completed earlier as the basis of the new STA; or (2) an initially successful individual no longer meets the eligibility standards for the STA. As to the first exception, the duration of the STA would be 5 years from the date on which the initial or comparable check was issued. Therefore, if TSA issues a DOE based on an immigration check conducted 2 years earlier in connection with a previous STA, the duration of the new STA would be 3 years.

The second exception, proposed in paragraph (b), would occur if TSA determines that an approved individual no longer meets the STA eligibility standards. In this case, the STA would expire on the date that TSA serves a Final Determination of Ineligibility (FDI) or a Preliminary Determination of Ineligibility with Immediate Revocation (PDIIR) on the individual. Issuance of an FDI means that the adjudication on any redress processes has run its course and TSA has finalized its determination that the individual does not meet the STA standards. In such cases, the DOE is no longer valid, and is deemed expired. As explained in the discussion of proposed § 1530.417 below, TSA issues a PDIIR when it determines that an imminent security threat may exist and the DOE must be revoked immediately.

Paragraph (b)(3) would apply to individuals who have successfully completed a Level 3 STA, but who subsequently are indicted, convicted, or found not guilty by reason of insanity, of any of the disqualifying crimes under proposed § 1530.503. These individuals would no longer meet the STA standards as of the date of indictment, conviction, or finding of not guilty by reason of insanity. Paragraph (b)(3), therefore, provides notice that the DOE of such an individual expires as of the date of indictment, conviction, or finding, regardless of whether TSA has yet issued an FDI or PDIIR.

Paragraph (b)(4) would apply to individuals who have been issued a DOE, but whose immigration category subsequently changes and no longer meet the standards in section 1530.505. Paragraph (b)(4) provides notice that the DOE of such an individual expires as of the date that individual no longer meets the immigration standard, regardless of whether TSA has yet issued an FDI or PDIIR.

5. Proposed § 1530.9.

Paragraph (a)(1) would forbid any person from making, or causing to be made, fraudulent or intentionally false statements in documents required by, or used to show compliance with, proposed part 1530. Paragraph (a)(2) would forbid any person from making or causing to be made, for fraudulent purposes, any reproduction or alteration of any report, record, security program, access medium, identification medium, biometric data (fingerprints or photographs), or credential issued under proposed part 1530. The purpose of paragraph (a) is to provide a regulatory basis for enforcement action against a person who takes these actions, which undermine transportation security.

Paragraph (b) explains that anyone who violates paragraph (a) is ineligible for the access, privileges, or credential associated with the STA.

6. Proposed § 1530.11.

This section would forbid the fraudulent use of, or representation concerning, a DOE or STA conducted under part 1530. Paragraph (a) would forbid the use, or attempted use, of an STA issued or conducted for another person. Paragraph (b) would forbid a person from causing or attempting to cause another to violate paragraph (a). Collectively, these provisions are intended to protect the integrity and reliability of STAs. Paragraph (c) would establish that any person who violates this section is ineligible for the access, privileges, or credential associated with the STA.

7. Proposed § 1530.13.

Paragraph (a) pertains to compliance, inspection, and enforcement activities associated with the vetting process. Specifically, TSA proposes that each individual who is required to undergo an STA, and each owner/operator whose employees or authorized representatives must undergo an STA, must permit DHS, at any time or place, to make inspections or tests, including the copying of records, to determine compliance with this part and part 1520, which pertains to sensitive security information. Paragraph (b) would provide that TSA may require each person with responsibilities under proposed part 1530 to provide evidence of compliance with parts 1530 and 1520, including copies of records.

C. Proposed Subpart B—Individual's Enrollment Requirements and Continuing Responsibilities

1. Introduction.

Proposed subpart B would focus on the information the individual must provide when applying for the STA. Subpart B would also establish the individual's continuing responsibilities throughout the duration of the STA, such as disclosing any new disqualifying information.

TSA must collect and process information, documents, and fees from individuals in order to conduct the checks that make up an STA. TSA refers generally to this part of the STA as “processing.” Subpart B proposes the procedures TSA would use in the enrollment process. TSA uses this enrollment model in existing vetting programs, such as for TWIC and HME applicants under part 1572, and has a high level of confidence in this approach. TSA operates over 300 enrollment sites throughout the United States and abroad

where individuals who are required to undergo certain STAs go to provide biographic, documentary, and if necessary, biometric information. Many of these individuals also have the option to provide some of this information on-line. The enrollment method set out in proposed subpart B has been designed to provide as much flexibility as possible for individuals and their employers, while maintaining efficient, manageable, and secure interaction with TSA systems.

A complete list of the more than 300 enrollment centers, along with information about the locations, hours of service, contact information, etc., will be made available on the TSA website.

TSA generally uses a contractor to provide enrollment services and, throughout this document, we refer to “TSA” to include TSA's contractor engaged in enrollment activities. Through the contracting process, TSA can provide cost-effective services to a large number of individuals at all sorts of locations. A TSA contractor under this proposed rulemaking would perform functions similar to the functions performed by a “TSA Agent” under current 49 CFR part 1572, subparts E and F, for the current HME and TWIC programs. TSA conducts a comprehensive Level 3 STA on these agents before they may work at a TSA enrollment center.

The proposed rule offers optional enrollment processes through the TSA contractor separate from the alternative in which enrollment is completely performed by the regulated party. To maximize the benefits of TSA-run enrollment services and minimize employee time away from work to enroll, TSA's enrollment provider may establish “mobile enrollment” sites at particular workplaces where a large volume of individuals need to apply for an STA. Also, the enrollment provider may enter into agreements with a private employer to share some enrollment duties at the workplace, and

whether the provider would charge a fee for this service.

As discussed in greater detail above in section II.B.5., TSA considered the alternative of requiring or permitting owner/operators subject to this NPRM to act as enrollment providers, providing their own trained and vetted “trusted agents” to collect information and fees from STA applicants, verify their identity, and send all information through secure pathways to TSA. Under this alternative, the employers would be required to ensure that the trusted agents adhere to minimum enrollment standards for verifying identity, protecting privacy information, accurately collecting biometric and biographic information, and processing TSA's fees correctly. This alternative would eliminate the need for employees to travel to an enrollment site outside the workplace. However, owner/operators would also bear the significant costs required to establish and maintain secure systems and the staff to conduct enrollment.

TSA invites public comment on the use of TSA enrollment services, and the alternative to permit owner/operators to conduct enrollment for this population.

2. Proposed § 1530.101.

Paragraph (a) would provide a road map to the section. Paragraph (b) would list the biographic information and copies of documents that each STA applicant must provide. Paragraphs (b)(1)-(9) would require standard items of biographic information, such as name, address, gender, date of birth, and country of citizenship, which are necessary to identify the individual conclusively and to accomplish the vetting process.

Paragraph (b)(10) would require the individual's employer information, including address, telephone number, and facsimile number (if available), which are important if TSA needs to take follow-up action regarding the individual. For example, if an individual “passes” initial vetting as a security-sensitive employee, but is subsequently disqualified, TSA would have to contact the relevant owner/operator to communicate that the individual is no longer authorized to work as a security-sensitive employee.

Paragraph (b)(11) is related to the immigration check explained in the discussion of the standards in subpart F of part 1530. The purpose of this proposed requirement is to obtain documentary evidence to improve the reliability of the immigration check. Under paragraph (b)(11), each individual would be required at the time of the STA application, to present documentation in a form and manner specified by TSA, to verify the immigration category they maintain. For individuals claiming to be U.S. citizens or U.S. nationals by birth, examples of such documentation would include a passport book or passport card; a certified copy of a birth certificate from one of the 50 States, the District of Columbia, American Samoa, Swain's Island, Puerto Rico, U.S. Virgin Islands, Northern Mariana Islands, or Guam; an American Indian Tribal Card with photo indicating U.S. citizenship (Form I-872); an unexpired Native American Tribal Card approved by the Secretary to denote identity and U.S. citizenship; a U.S. Coast Guard Merchant Mariner Credential or Document; a U.S. Enhanced Driver's license; and a Trusted Traveler Program Card (FAST, NEXUS, SENTRI, or Global Entry). For individuals claiming U.S. citizenship who were born abroad, in addition to many of the documents listed above, examples would include a Certificate of Citizenship and Consular Report of Birth Abroad, or a naturalization certificate. For individuals not claiming U.S. citizenship, examples would include visas and proof of U.S. lawful permanent residence status. During the enrollment process, TSA proposes to scan the documentation presented by the individual into the electronic enrollment record.

The information requested in proposed paragraphs (c)(1)-(5), including social security number, passport information, Department of State Consular Report of Birth Abroad, information about previous STA applications, and information about the individual's Federal security clearance, is voluntary. Failure to provide this information would not prevent TSA from processing the application. However, providing the information requested in paragraph (c), if available, may speed up the process for the individual.

In addition to the biographic information and documentation specified in proposed paragraphs (b) and (c), TSA proposes to require every individual to sign certain statements as part of the application process. Paragraph (d) would require each individual to sign a statement attesting that the information provided in the application is true, complete, and correct to the best of the individual's knowledge, and that the individual acknowledges that knowing and willful false statements or material omissions may result in criminal prosecution and other consequences.

Paragraph (e) would require all individuals to certify in writing that they understand that if TSA determines an individual does not meet the STA standards, TSA may notify the employer, and, in the case of an imminent threat to an owner/operator, TSA may provide the employer limited information necessary to reduce risk of injury or damage.

Paragraph (f) would require all individuals to certify that there is a continuing obligation to report certain events to TSA. Not every event listed in this proposed section will necessarily apply to every individual. For example, one of the events that must be reported is a conviction, or finding of not guilty by reason of insanity, for a disqualifying criminal offense. This event is relevant only for security coordinator applicants applying for an STA that includes a CHRC.

3. Proposed § 1530.103.

This section would require individuals whose STA includes a CHRC to provide fingerprints in a form and manner prescribed by TSA. TSA must collect and transmit fingerprints electronically according to procedures and standards the FBI requires of all agencies that submit fingerprints for a CHRC.

In addition to using the fingerprints to obtain criminal history information from the FBI, TSA will use the fingerprints to conduct biometric vetting through IDENT. IDENT is the DHS repository for all biometrics collected by agencies within DHS, and some external agencies, such as the Department of Defense. Using IDENT biometric vetting capabilities enhances TSA's STA process. TSA would receive the results of these searches and use the information as part of the STA eligibility decision. We invite comment from all interested parties on the use of IDENT for TSA vetting purposes.

4. Proposed § 1530.105.

This section proposes that each individual applying for an STA must pay the fee associated with the STA at the time of application. TSA is statutorily required to fund all vetting and credentialing services through user fees,

and consequently, TSA will not process STA applications until the fees are paid. TSA begins incurring costs as soon as it begins processing the application. Also, TSA cannot refund fees, even if the individual decides at a later date to withdraw the application, because TSA has already expended resources that must be covered through fees.

See

6 U.S.C. 469.

5. Proposed § 1530.107.

Each individual who applies for an STA has continuing responsibilities for the life of the STA. Paragraph (a) would establish the requirement to report certain events to TSA within 24 hours of occurrence.

Each of the events that must be reported relate directly to whether the individual is still eligible to serve as a security-sensitive employee or security coordinator.

Paragraph (a)(1) involves individuals whose STA includes a CHRC (in this rulemaking, security coordinators), both those who have applied for an STA, and those who have already successfully completed an STA that included a CHRC. These individuals would be required to report an occurrence, indictment, conviction, or finding of not guilty by reason of insanity of disqualifying crimes within 24 hours. The list of disqualifying crimes is in proposed § 1530.503, and is explained below. The 24-hour reporting requirement would also apply to individuals who are adjudicated as lacking mental capacity, or committed to a mental health facility.

Paragraph (a)(2) would apply to all individuals whose STA includes an immigration check, which are security coordinators and security-sensitive employees in this rulemaking. These individuals would be required to report any change in immigration category that results in no longer meeting the immigration standards.

Paragraph (b) would require all individuals who have successfully completed an STA to notify TSA if certain contact information changes. Specifically, each individual would be required to notify TSA of any legal name changes (proposed § 1530.101(b)(1)), address changes (proposed § 1530.101(b)(2)), or daytime telephone number changes (proposed § 1530.101(b)(9)). TSA needs reliable contact information in order to administer the STA after the DOE is issued. For example, TSA may have to contact an individual to provide a notice of ineligibility and redress procedures, if TSA discovers potentially adverse information about an individual. This notification requirement would continue until the DOE expires.

6. Proposed § 1530.109.

This section proposes the procedures TSA would use to verify the individual's identity. Paragraph (a) would provide that TSA must be able to verify each individual's identity at the time of enrollment. This element is critical to attain a high a degree of certainty that the individual is who he or she claims to be.

Paragraph (b) would require the individual to present two forms of identification, at least one of which must be a government-issued photo identification. Government-issued photo identification is relatively reliable and is not burdensome or costly for individuals to obtain. TSA uses fraud detection software as part of the enrollment process at some locations and continues to explore expanding and improving the use of technology to aid the identification verification process. As of the writing of this NPRM, some biometric technologies other than fingerprints, including facial recognition and iris scans, are being used by governmental entities to produce identity documents. However, this practice is not yet widespread or reliable enough to ensure identity verification in this rulemaking. As a result, TSA believes that requiring government-issued photo identification is the most practical balance between trustworthiness and burden to ensure accurate identify verification at this time. To the extent new technologies become more widespread and trustworthy, TSA will consider alternative means of providing identity verification. Paragraph (c) would require examination of the documents presented by the individual to determine whether they appear to be genuine, unexpired, and relate to the individual presenting them.

D. Subpart C Is Reserved

E. Proposed Subpart D—Fees

1. Introduction.

The fee structure proposed in this rulemaking is designed to cover TSA's anticipated costs of conducting and administering STA services over the 5-year duration of each STA. TSA calculated the proposed fees based on estimates for the cost of each respective service and the expected populations that will receive benefit from the services.

2. Costs.

TSA incurs costs during all phases of the vetting process. During the initial phase of vetting, resources are required to establish and operate physical locations for individuals to complete certain parts of the application process. As noted previously, TSA uses contractors to find, lease, and operate these enrollment centers. The resources needed to establish, equip, and staff such locations throughout the country have been grouped together and labeled “Processing.”

Similarly, some interactions with TSA to perform a vetting function may be accomplished entirely by using an online platform, and resources are required to establish and operate such a platform for individuals to complete certain aspects of the vetting process. Additionally, TSA assumes that some online interactions would result in customer service expenses that would also be covered by this fee. The resources to design, establish, maintain, and staff such a platform and offer customer service are grouped together and labeled “Reduced Processing.”

Once individual information is captured and records are established, TSA incurs costs to administer the information through the various databases that comprise the STA. As explained in the discussion of proposed § 1530.5, TSA performs different levels of STAs. The three levels of STAs vary depending on the specific checks included in the STA, such as terrorism/other analyses, immigration, or criminal history. Thus, the cost to conduct the STA depends on the resources TSA needs to complete the STA services. TSA proposes to segment the costs according to how individuals interact with TSA and the consumption of services to complete the STA. Thus, the Processing Fee or Reduced Processing Fee would be imposed when an individual uses processing services, the criminal check fee would be imposed for each individual required to complete a CHRC, and so on. Each individual would pay fees only for the services TSA provides for his or her STA.

To complete the terrorism/other analyses check, TSA incurs costs to construct, maintain, and operate the information technology (IT) platform that enables comparing the applicant's biographic information to multiple terrorism and law enforcement databases, and other information sources. TSA incurs additional expenses to evaluate the information received from these sources, make decisions as to whether an individual poses or may pose a threat, engage in redress with the individual when necessary, and communicate with other entities, such as the individual's employer or governmental agencies. TSA must also recover the cost of staffing this service through fees. TSA has labeled this grouping of costs “terrorism/other analyses” fees.

TSA incurs costs similar to those discussed above for completion of immigration checks and CHRCs. Those fees are segmented respectively and labeled accordingly.

With respect to the CHRC fee, TSA must collect the fees the FBI charges to process the initial criminal check and the Rap Back recurrent criminal history service, in addition to TSA's costs to adjudicate the results of the initial criminal check and any subsequent Rap Back notifications, and provide redress.

TSA's cost-estimating methodology includes both an analysis of actual costs TSA has incurred for existing STAs and an analysis of future investments that are necessary to develop, operate, and maintain a robust STA platform. In

some instances, TSA has been able to develop a unit cost for a particular STA-related service. In other instances, TSA developed a resource investment estimate that is equitably shared by all individuals who benefit from the investment. TSA has consulted with programmatic and industry experts, and acquired data from internal sources, other governmental agencies, and publicly available sources. Table 5 below is a summary of costs that TSA estimates it will incur over the first 5-year period of this effort.

Additional details regarding the cost estimates used to determine the service fees can be found in the Fee Report in the rulemaking docket.

The costs in this table reflect the total population of STAs in this proposed rule using services for processing and checks equivalent to Levels 2 and 3, for security sensitive employees and security coordinators, respectively. TSA does not have data on the newly regulated industries to estimate the number of covered individuals who may have a comparable STA and could pay the reduced processing fee, but acknowledges that costs could be less those reported in this table.

Table 5—Estimated TSA Service Costs Over First Five-Year Period

[$ Thousands]

Service

TSA estimated costs

Year 1

Year 2

Year 3

Year 4

Year 5

Total

f = Σa,b,c,d,e

Processing

$16,700

$1,422

$1,423

$1,424

$22,393

Terrorism/Other Analyses

2,429

207

3,257

Immigration

911

1,221

Criminal History

Total

20,084

1,710

1,711

1,712

1,713

26,930

Note:

Calculations may not be exact in the table due to rounding.

3. Populations.

TSA has consulted with programmatic and industry experts, and acquired data from internal sources, other governmental agencies, and public sources to analyze the number of transportation workers who would be covered under this rulemaking. Table 6 below is a summary of populations that TSA estimates it would impact over the first 5-year period of this effort. Additional details regarding the population estimates used to determine fees can be found in the Fee Report and the Preliminary Regulatory Impact Analysis in the rulemaking docket.

Table 6—Number of Employees Affected by the Proposed Rule Over First Five-Year Period by Industry

[Thousands]

Industry

Number of employees affected by year

Year 1

Year 2

Year 3

Year 4

Year 5

Total

f = Σa,b,c,d,e

Freight Rail Total

123.13

4.93

4.88

4.83

4.77

142.55

Security-Sensitive Employees

122.24

4.89

4.84

4.78

4.73

141.47

Security Coordinators

0.90

0.04

1.07

PTPR Total

179.57

20.82

20.89

20.95

21.01

263.24

Security-Sensitive Employees

179.34

20.79

20.86

20.92

20.98

262.88

Security Coordinators

0.23

0.03

0.36

OTRB Total

0.44

0.06

0.69

Total

303.14

25.82

25.83

25.84

25.85

406.47

Calculations may not be exact in the table due to rounding.

4. Fees.

To comply with 6 U.S.C. 469, which requires TSA to fund vetting and credentialing programs through user fees, TSA proposes to establish user fees for individuals who receive STA services under this proposed rule. TSA determined the proposed fees in accordance with Office of Management and Budget (OMB) Circular No. A-25. The proposed fees are set to recover a share of the service costs from all individuals that use a particular service, and a description of the processes that went into estimating the proposed fees is available in the Fee Report in the rulemaking docket. TSA may increase or decrease the fees described in this regulation for changes in cost due to, for instance, new efficiencies, inflation, changes in contractual services, changes in populations, or other factors following publication of the final rule. TSA will publish a notice in the

Federal Register

notifying the public of any fee changes.

Table 7—Fees by Type of Service

Service fee

Low

Primary

High

Processing Fee

$44.00

$55.00

$66.00

Reduced Processing Fee

24.00

30.00

36.00

Terrorism/Other Analyses Fee

6.00

8.00

10.00

Immigration Fee

2.00

3.00

4.00

CHRC/Initial Fee

17.00

21.00

25.00

CHRC/Renewal Fee

8.00

10.00

12.00

The following table presents combinations of services that coincide with STA levels in the proposed rule.

Table 8—Fees by STA Level With In-Person Enrollment

STA level

Low

Primary

High

Level 1 (Processing, Terrorism/Other Analyses)

$50.00

$63.00

$76.00

Level 2 (Processing, Terrorism/Other Analyses, Immigration)

52.00

66.00

80.00

Level 3 (Processing, Terrorism/Other Analyses, Immigration, Initial CHRC)

69.00

87.00

105.00

Table 9—Fees by STA Level With Online Renewal

STA level

Low

Primary

High

Level 1 (Reduced Processing, Terrorism/Other Analyses)

$30.00

$38.00

$46.00

Level 2 (Reduced Processing, Terrorism/Other Analyses, Immigration

32.00

41.00

50.00

Level 3 (Reduced Processing, Terrorism/Other Analyses, Immigration, CHRC/Renewal)

40.00

51.00

62.00

Table 10—Fees by STA Level With In-Person Renewal

STA level

Low

Primary

High

Level 1 (Processing, Terrorism/Other Analyses)

$50.00

$63.00

$76.00

Level 2 (Processing, Terrorism/Other Analyses, Immigration)

52.00

66.00

80.00

Level 3 (Reduced Processing, Terrorism/Other Analyses, Immigration, CHRC/Renewal)

60.00

76.00

92.00

5. Proposed § 1530.301.

Paragraph (a) would explain that TSA calculates the fees using widely accepted accounting principles and practices, in accordance with the provisions of 31 U.S.C. 9701, which direct agencies to make their services self-sustaining to the extent possible, and in accordance with other applicable laws. Generally, TSA totals all costs associated with the vetting program over the life of the STAs (5 years), divides the total by the number of individuals vetted, and sets aside a small portion of the funds collected to cover emergencies, such as necessary system changes, natural disasters such as pandemics, or other unforeseen events. At least every 2 years, TSA would review the costs of conducting the STAs and the associated fees collected, using the same method of analysis, to ensure that fees recover, but do not exceed, the full cost of services. TSA prepared a Fee Report for this proposed rule, which discusses the methodology and factors TSA used to arrive at the proposed fees, and placed the Report in the rulemaking docket. TSA would revise the fees, if necessary, following this evaluation, by publishing a notice in the

Federal Register

Paragraph (b) explains the procedures that TSA would use to make inflation adjustments to the fees, as necessary.

6. Proposed § 1530.303.

This proposed section describes each STA service for which TSA charges a fee, service-by-service, computed as explained above. TSA provides an estimate of the fees based on information concerning population numbers and the costs of the services. TSA will be able to finalize these fees after receiving information concerning the number of employees subject to proposed vetting requirements from affected entities as part of this rulemaking process, and an accounting of internal costs at the time the proposed rule would become final. TSA will publish the final fee amounts through a notice in the

Federal Register

Paragraph (b) proposes the fees that would cover TSA's processing costs. Paragraph (b)(1) proposes that the Processing Fee would cover the costs associated with an applicant's interaction with TSA, such as enrollment center operations, collecting applicant information, verifying applicant identity, processing the vetting information, and program management. TSA estimates the processing fee to be $43 to $65, and proposes to codify that range in the rule. Paragraph (b)(2) proposes the Reduced Processing Fee that would apply when an individual's interaction with TSA can be completed entirely online and does not involve services at an enrollment center. TSA estimates the Reduced Processing Fee to be $24 to $36.

Paragraph (c) describes the fee to cover TSA's costs of conducting the terrorism/other analyses check, the substance of which is explained in the discussion of proposed § 1530.507. This service includes the costs of querying the relevant data sources, adjudicating the information TSA receives from the queries, and processing appeal requests. TSA estimates the Terrorism/other analyses Check Fee to be $6.00 to

$10.00, and proposes to codify that range in the rulemaking.

Paragraph (d) describes the fee to cover TSA's costs of conducting the Immigration check in the United States. This service includes the costs of querying the relevant data sources, adjudicating the information TSA receives from the queries, and processing appeal requests. TSA estimates the Immigration Check Fee to be $2.00 to $4.00, and proposes to codify that range in the rulemaking.

Paragraph (e) proposes the fee to cover the costs of conducting the CHRC. This service includes the cost of collecting fingerprints electronically; transmitting them to the FBI; adjudicating any rap sheets associated with the fingerprints to determine whether the individual has a disqualifying conviction, arrest, or indictment in accordance with section 1530.503; adjudicating new criminal information that the FBI's Rap Back service provides; and conducting an appeal or waiver, where applicable. TSA estimates the CHRC fee for the initial CHRC, which occurs in-person at a TSA enrollment center to be $17.00 to $25.00, which is proposed in paragraph (e)(1) of this section. Given the benefits of the Rap Back system, applicants would not be required to provide new fingerprints for a new CHRC when renewing the STA. The individual's fingerprints would be enrolled in Rap Back and thus, any criminal history associated with those prints would be transmitted to TSA. Therefore, the renewal of an STA would not require in-person enrollment at an enrollment center to provide fingerprints, and consequently, the fees for a renewal CHRC are lower than for the initial CHRC. In paragraph (e)(2), TSA proposes the renewal CHRC fee of $8.00 to $12.00. TSA proposes to codify these ranges in the rulemaking.

TSA will continue to work to minimize all costs and would finalize fee amounts in conjunction with publication of the final rule. Following publication of the final rule, TSA may, by notice in the

Federal Register

, increase or decrease the fees to reflect changes in costs. The total TSA fee for any given STA would be the sum of the fees for each service that comprises that level of STA. These total fees, broken out by level of STA, are explained in proposed § 1530.305 discussed below.

7. Proposed § 1530.305.

This section would set out the fees TSA must charge for each STA proposed in this rulemaking, organized by level of STA, with paragraphs (a)-(c) corresponding to STA Levels 1-3, respectively. Each paragraph lists the fees associated with the relevant STA.

8. Proposed § 1530.307.

This section on fee comparability explains how TSA computes fees when TSA is able to rely on an earlier STA to complete a new STA. This concept of comparability is explained more completely in the discussion of proposed § 1530.509, below. If TSA can rely on an earlier check, rather than conducting a new check, paragraph (b) provides that we would only charge the fee for the services that we must provide for the current STA. This results in a lower fee for the applicant and lower costs for TSA. Table 10 below provides examples of how using a comparable STA affects fees.

Table 11—How a Comparable STA Affects Fees

If I have a . . .

And I need a . . .

I will not have to repeat . . .

I may . . .

I must . . .

TWIC (Level 3)

Level 2 for Security-Sensitive position

Terrorism/other analyses or Immigration

Enroll online

Pay Reduced Processing Fee.

If I have a . . .

And I need a . . .

I will not have to repeat . . .

I must . . .

Level 2 (security-sensitive position)

Level 3 for Security Coordinator position

Terrorism/other analyses or Immigration

Visit Enrollment Center to provide fingerprints and complete CHRC

Pay Processing and CHRC Fees.

9. Proposed § 1530.309.

This section proposes that fees must be paid through a method approved by TSA. Currently, TSA accepts STA fees through a third-party vendor or through the

www.pay.gov

website during processing, and we may continue to use that process. TSA is exploring other methods of payment that may be equally cost-effective and resistant to fraud. Paragraph (b) would make it clear that TSA cannot act on an STA until the required fees have been recognized by TSA. Paragraph (c) provides that TSA would not issue refunds. TSA will not begin processing an STA until the individual pays the fee. Once TSA begins the STA, TSA incurs costs that must be recovered through fees.

F. Proposed Subpart E—Adjudication Procedures

1. Introduction.

Once TSA collects biographic information, biometrics (where needed for a CHRC), and fees from an individual, TSA transmits the information to the various databases associated with the checks. TSA then evaluates the information that is returned from the databases to determine if it contains data that is disqualifying according to the standards that apply. TSA then makes an initial determination on eligibility and notifies the individual. This process is called adjudication.

2. Proposed § 1530.401.

This proposed section sets out procedures for conducting CHRCs, which in this rulemaking apply to security coordinators. Paragraphs (a) and (b) explain that TSA would transmit the fingerprints collected during enrollment to the FBI, and receive and adjudicate the results of the check.

3. Proposed § 1530.403.

This section explains the procedures for conducting the terrorism/other analyses check, which in this rulemaking would apply to security coordinators and security-sensitive employees. TSA would check certain domestic and international databases that include information on terrorists, individuals with ties to terrorism or international criminal networks, fugitives from justice, and databases that assist in confirming an individual's identity. In paragraph (a) TSA proposes the procedures that TSA would use to conduct a terrorism/other analyses check.

Paragraph (b) provides notice that TSA may send the individual's information to the appropriate law enforcement or immigration agency if the terrorism/other analyses check

reveals that the individual has an outstanding want or warrant, or is subject to a removal order. Under these circumstances, TSA would share the individual's information with the agency that posted the want, warrant, or removal order to ensure that the issue can be resolved lawfully.

4. Proposed § 1530.405.

This section proposes the procedure TSA would use to conduct the immigration check. This check would verify that the individual is in one of the following categories: a U.S. citizen, U.S. National, lawful permanent resident, refugee, asylee, lawful nonimmigrant, granted parole, or is otherwise authorized to work in the U.S. TSA proposes to use relevant Federal databases, primarily the SAVE program administered by USCIS to verify that an individual's alien registration number, I-94 Arrival-Departure Form number, or other pertinent document number is valid and associated with the individual.

5. Sections 1530.407, 1530.409, and 1530.411.

These sections would be reserved.

6. Proposed § 1530.413.

This section applies to all individuals who must undergo an STA and proposes that TSA issue a DOE if TSA determines that an individual meets the STA standards. TSA would notify the individual of the DOE and would make that information available to the owner/operator. TSA may notify the individual via letter in the U.S. postal service, an email, or another method yet to be determined. TSA intends to create a web portal that owner/operators would access to determine whether a particular worker has passed the appropriate STA for the position in which he or she works. TSA invites comment on this proposal from all interested parties, as to preferences for notifications. In current vetting programs, TSA asks individuals how they wish to be notified of the final STA determination, and then uses that method, if possible. Workers who are relatively stationary often prefer a letter, and those who are mobile may prefer email or other electronic notification.

7. Proposed § 1530.415.

This section describes the procedures that would apply when an individual may not meet, or may no longer meet, the STA standards set out in proposed § 1530.501. When this occurs, TSA would notify the individual or holder of the STA of the factors that may be disqualifying by issuing a Preliminary Determination of Ineligibility (PDI) to the individual.

In existing vetting regulations, TSA uses the term “Initial Determination of Threat Assessment.”

See

49 CFR 1572.15(d). However, TSA believes “preliminary” better describes this step. TSA also proposes to use the word “ineligibility” rather than the term “threat assessment” to more clearly identify the type of determination TSA is making. The STA is used to determine whether an employee is eligible or ineligible for certain roles or functions and thus, we propose to use that terminology.

As set forth in paragraph (b), TSA would also state the basis for the determination in the PDI.

Under paragraphs (c)(1) and (2), the PDI would include information about how the individual may appeal or, if applicable, request a waiver of ineligibility, including the time deadlines associated with these requests. TSA proposes that the individual must appeal the PDI, request a waiver of the PDI, or request an extension of time, generally within 60 days of service of the PDI. TSA may consider requests for extensions of time beyond 60 days for good cause. If the individual does not appeal, the PDI would automatically convert to a FDI. TSA uses these timelines in other vetting programs, and believes they provide sufficient time for an individual to seek redress.

Paragraph (d), “Determination of Arrest Status,” would apply when the results of the CHRC show an arrest for a potentially disqualifying crime, but no indication of whether the arrest resulted in a conviction, dismissal, or acquittal. In such cases, TSA would notify the individual of the arrest without disposition, and provide instructions on how to clear the disposition under paragraph (d)(2). Under this paragraph, the burden would be on the individual to provide written proof to TSA that the arrest did not result in a conviction for a disqualifying criminal offense. Such written proof may include a record of conviction for a misdemeanor that is not disqualifying, or a dismissal of the charges from the prosecution. Individuals who do not provide the evidence that the arrest did not result in a conviction within 60 days of service of the PDI, or request an extension of time, would be disqualified.

In paragraph (e), TSA proposes to permit an individual to take certain corrective action if the CHRC discloses an arrest for a disqualifying crime. Specifically, the individual may contact the local jurisdiction responsible for the criminal information and the FBI to complete or correct the information. Paragraph (d) would also establish a 60-day timeframe in which TSA must receive a certified true copy of the revised record.

8. Proposed § 1530.417.

This section would apply if TSA determines that an individual who initially passed the STA may no longer meet the STA standards, may pose an imminent threat, and immediate revocation of the associated credential, access, or authorization is warranted. In these cases, TSA would issue a PDIIR. This scenario would arise where new information creates significant security concerns about the individual's continued eligibility and suggests the access should be revoked until a final determination is possible. If TSA determines that the information is not disqualifying, TSA would reinstate the DOE.

Under paragraph (a), TSA proposes to issue the PDIIR to the individual and, as applicable, the owner/operator, facility, or employer. Paragraph (b) would provide that a PDIIR would otherwise be processed in accordance with proposed § 1530.415, which addresses PDIs.

Paragraph (c) would apply when TSA does not issue a FDI (see proposed § 1530.419 below) after having issued a PDIIR. In such cases, the individual's access, privileges, and/or credentials would be reinstated, at no cost to the individual. TSA would also notify the individual, and if applicable, the employer, of the reinstatement.

9. Proposed § 1530.419.

In paragraph (a) TSA proposes that if an individual does not appeal or a request a waiver of a PDI or PDIIR, the preliminary finding automatically converts to an FDI and the individual's eligibility is revoked.

Paragraph (b) would apply when an individual appeals or requests a waiver of a PDI or PDIIR, and TSA denies the appeal or waiver request. In these cases, TSA would serve the FDI on the individual, and the employer where applicable.

G. Proposed Subpart F—Standards

1. Introduction.

Subpart F proposes the standards that TSA would use to make decisions about eligibility based on the information obtained from the checks that comprise an STA.

2. Proposed § 1530.501.

This section would set out the standards that an individual must meet to successfully complete an STA and receive a DOE. Each of the standards in paragraph (a)(1)-(4) is related to the checks that may be included in an STA. Not every standard will apply in every adjudication because not every check is included in every STA. For example, in adjudicating the results of a Level 2 STA for a security-sensitive employee, which does not include a CHRC, the standard in paragraph (a)(4), which applies to the results of CHRCs, would not apply.

Under paragraph (a)(1), TSA would not issue a DOE unless the individual's identity could be verified. See the discussion of proposed § 1530.109

regarding identity verification procedures.

Paragraph (a)(2) pertains to the terrorism/other analyses check. TSA would review the information returned from the data sources queried as part of this check, which are described in proposed § 1530.507, to determine whether the individual is eligible. If TSA determines that information indicates the individual poses or may pose a threat to transportation or national security, or of terrorism, TSA would deem the individual ineligible to serve in a security-sensitive position.

Paragraph (a)(3) would apply to individuals whose STAs include a check for immigration in the United States. If the individual is not in a permissible immigration category, TSA would not issue a DOE. The substantive requirements of the immigration check are explained in the discussion of proposed § 1530.505, below.

Paragraph (a)(4) would apply to the individuals whose STA includes a CHRC (Level 3 STA). Under this paragraph, an individual would be disqualified if he or she has a disqualifying criminal offense or lacks mental capacity, as described in proposed § 1530.503.

Based on TSA's vetting experience, the issue of mental incapacity comes to light in the course of the criminal check, such as when an individual is found not guilty by reason of insanity. TSA does not have access to health records of STA applicants, and therefore, the primary way TSA becomes aware of an individual's mental capacity is through the criminal check. For this reason, we propose to place the mental capacity standard in the same paragraph as the criminal standards.

Paragraph (b) explains that individuals may reapply for an STA if the condition that originally made them ineligible no longer exists.

3. Proposed § 1530.503.

Paragraph (a) proposes the criminal look-back periods, crimes, and other factors that would be disqualifying for an individual required to complete a Level 3 STA. An individual who has a conviction, or finding of not guilty by reason of insanity, for one or more of these crimes would not be eligible if a Level 3 STA is required. TSA proposes to use the disqualifying crimes and lookback period that currently apply to the HME and TWIC programs

for the surface employees subject to this NPRM for two reasons. First, this population is part of surface transportation, like the HME drivers, and the security threats are similar for all surface modes, and differ from aviation. Second, the list of crimes and lookback period that apply to HME and TWIC workers constitute Congress' most recent expression as to the appropriate disqualifying criteria for transportation programs. Congress adopted these criminal standards in 2007,

whereas the standards for aviation were adopted prior to 9/11 when the security climate was quite different.

See

49 CFR 1572.103.

See

Section 1309 of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110-53 (121 Stat. 397-400; August 3, 2007).

Paragraph (a)(1) lists serious crimes that would be deemed permanently disqualifying. Paragraph (a)(2) lists proposed look-back periods that would apply to interim disqualifying offenses. The proposed interim crimes would be disqualifying if the conviction, or finding of not guilty by reason of insanity, is within 7 years of the date of the application; or if the individual was incarcerated for that crime and released from incarceration within 5 years of the date of the application.

Paragraph (a)(3) lists the interim disqualifying criminal offenses we propose to use for security coordinators in this rulemaking. This list of crimes is identical to the list of interim offenses codified in section 1572.103 for the TWIC and HME programs, except that it also lists manslaughter as an interim disqualifying offense. TSA has treated manslaughter as a disqualifying offense in the TWIC and HME programs as a lesser included offense of murder, but it has not been listed in section 1572.103.

Paragraph (b) would be reserved.

Paragraph (c) would be based on 49 CFR 1572.103(c), which provides that an individual who is under want, warrant, or indictment in any civilian or military jurisdiction for a disqualifying crime, is disqualified until the want or warrant is released, or the indictment is dismissed. TSA proposes to revise this provision by adding the issuance of a criminal complaint to the grounds for disqualification pending release or dismissal. The sole purpose of the proposed revision is to account for cases in which the jurisdiction begins a criminal proceeding with a complaint rather than an indictment. Under the Federal Rules of Criminal Procedure, a complaint is a written statement of the essential facts constituting the offense that is charged, and is under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.

In other vetting programs, TSA has found cases in which the jurisdiction initiates a criminal action through a complaint, rather than a want or indictment, and proposes to make it clear that this would also be disqualifying under this proposed rule.

See

Rule 3, Federal Rules of Criminal Procedure, as amended December 1, 2019.

Paragraph (d) of this section proposes that an individual who has been declared mentally incompetent or involuntarily committed to mental health facility would be disqualified. This is the same standard that currently applies to TWIC and HME applicants, but TSA proposes to move it into the criminal standards in this NPRM, because TSA becomes aware of mental incapacity through the criminal check.

4. Proposed § 1530.505.

As explained above, applicants for a Level 2 or Level 3 STA must be a U.S. citizen, U.S. national, or non-citizen who is a lawful permanent resident, a refugee, an asylee, a lawful nonimmigrant, is paroled into the U.S., or is otherwise authorized to work in the U.S. Note that individuals with Deferred Action for Childhood Arrivals are authorized to work in the U.S. and thus are eligible to apply for a security sensitive or security coordinator position under this rulemaking. The standard proposed in this section would require applicants to be in one of these listed, permissible categories at the time of application. TSA is not proposing that individuals must belong to a particular category of noncitizen to successfully complete the STA, because TSA does not assess a particular level of security risk associated with one immigration category as compared to another.

Paragraph (b) explains that TSA determines whether an individual is in a listed, permissible category by checking relevant Federal databases, primarily the SAVE program administered by the USCIS. Also, TSA may verify an applicant's social security number, alien registration number, or I-94 number as part of the vetting process, to identify any instance of identity fraud.

5. Proposed § 1530.507.

In this section, TSA proposes the standards for the terrorism check and other analyses. TSA would conduct this portion of the STA recurrently, which means each time a watchlist or database receives new or updated information, TSA compares the individual's name to the revised list. TSA would continue to recurrently vet the individual for the life of the STA, which TSA proposes to be 5 years in this NPRM. The recurrent vetting process allows TSA to receive notification if a vetted individual is subsequently added to a terrorist watchlist. If TSA determines, based on the information generated during this vetting, that an individual poses or may

pose a threat to transportation or national security, or of terrorism, TSA would deem the individual to be ineligible to work as a security coordinator or security-sensitive employee.

TSA searches several databases in this portion of the STA, including the consolidated terrorist database (TSDB), the U.S. Marshals Service federal wants and warrants, Interpol, the Department of State lost and stolen passport file, and the U.S. Treasury Office of Foreign Asset Control database of individuals who are sanctioned due to terrorism or national security issues.

If TSA matches an applicant's identity to an identity included in one of these lists, TSA conducts an investigation to determine whether, under the totality of the circumstances, an applicant is ineligible.

Note that the complete list of data sources TSA uses in this portion of the STA is Sensitive Security Information and subject to protection in accordance with 49 CFR part 1520.

Paragraph (b) proposes that TSA may determine an individual is ineligible if the check reveals extensive foreign or domestic criminal convictions, a conviction for a serious crime not otherwise covered by the regulation, or a period of foreign or domestic imprisonment that exceeds 365 consecutive days. TSA sometimes receives foreign criminal history records when conducting this check, such as through Interpol, which are not identified in the CHRC we conduct through the FBI's database. This paragraph would expressly provide TSA the discretion to disqualify an individual based on an overall view of the individual's record, even where some of the criminal history does not involve disqualifying offenses, but is indicative of an individual who may pose or poses a threat to national or transportation security, or of terrorism.

6. Proposed § 1530.509.

This section proposes to permit the use of existing, valid STA results for satisfying requirements for a new STA. TSA's goal is to be able to rely, in whole or in part, on an STA that was already conducted on an individual when that individual subsequently applies for another STA. Relying on comparable STAs conserves time and resources for TSA and individuals by eliminating redundant checks.

Paragraph (a) proposes that TSA may deem an earlier check comparable to a currently needed check based on certain factors listed in proposed paragraph (d), below, and if three conditions are met. First, as proposed in paragraph (a)(1), the original check cannot be expired. Second, as proposed in paragraph (a)(2), the original check must be part of a DOE that is not expired, revoked, or suspended. Third, as proposed in paragraph (a)(3), the earlier check must be adjudicated under standards that are comparable to the standards for the new STA.

For example, individuals applying for a security coordinator STA under this NPRM who hold a current TWIC would be able to use the CHRC conducted for TWIC as a comparable check because both the TWIC CHRC and the security coordinator CHRC are adjudicated against the same look-back period and list of disqualifying crimes.

Paragraph (b) proposes that TSA may accept a valid, unexpired STA, background check, or investigation conducted by TSA or another Federal governmental agency to satisfy the STA requirement. Unlike proposed paragraph (a), which addresses the comparability of a given check (terrorism/other analyses, immigration, or CHRC) from one STA to another, proposed paragraph (b) addresses whether an entire STA, background check, or investigation may satisfy a subsequent STA requirement without the need for further checks. For example, as explained below, TSA may determine that a Level 3 STA is comparable to a Level 2 STA (because the former includes all of checks included in the latter). Thus, TSA may rely on the fact that an individual has already successfully completed a Level 3 STA to satisfy a subsequent requirement for a Level 2 STA under a different regulatory program for the same individual. Proposed paragraph (b) would refer to the factors in proposed paragraph (d) as the basis for the determination.

Paragraph (c) would impose an important constraint on comparability based on timing. If TSA relies on a comparable check from an earlier STA, the duration of the new STA will be backdated to the date of the earliest check in the STA. This would ensure that no part of the STA is older than 5 years.

Paragraph (d) sets out the criteria that TSA would use to decide whether STAs, background checks, or other investigations are comparable in whole or in part. Paragraph (d)(5) would allow TSA to consider other factors it deems appropriate when making a comparability determination. For instance, an agency may ask TSA to consider the use of different databases that TSA does not use as comparable sources of information. TSA needs this latitude because of the widely variable factual and policy circumstances that can surround how a given governmental agency may conduct the background check or investigation on which TSA may rely.

Paragraph (e) is reserved.

Paragraph (f) proposes the responsibilities of an individual who asserts completion of a comparable STA to satisfy a new STA requirement. Paragraph (f)(3) would require an individual asserting completion of a comparable STA to complete enrollment and pay the associated STA fees. A new enrollment is necessary because TSA needs complete, up-to-date enrollment information to accurately identify the individual and notify him or her of the outcome of the STA.

Paragraphs (g)-(i) would list certain comparability determinations that TSA would set forth in the regulatory text. Each more thorough STA is comparable to the less thorough STAs. For instance, a Level 2 STA is comparable to a Level 1 STA, and a Level 3 STA is comparable to both a Level 2 and a Level 1 STA.

TSA has already determined that an STA for the FAST program, administered by CBP, is comparable to the TWIC and HME STA.

Since the requirements for the Level 3 STA proposed in this rulemaking are comparable to the TWIC and HME programs, the STA for a FAST card is comparable in whole to a Level 3 STA.

See

49 CFR 1572.5(e)(6).

In addition to the FAST program, CBP administers the NEXUS,

SENTRI,

and Global Entry

programs. These programs include thorough criminal history, terrorism, and immigration checks conducted by CBP, and in the case of Global Entry, also include an interview conducted by a CBP law enforcement officer. CBP's criminal checks view all of the disqualifying offenses we propose in this NPRM as disqualifying in their programs. Similarly, the CBP terrorism and immigration checks include comparable data sources and standards. For these reasons, TSA has determined that the STAs for these programs are comparable to the proposed Level 3 STA. Finally, the TSA PreCheck® STA would be comparable to the Level 3 STA in this proposed rule. For TSA PreCheck®, TSA uses TWIC and HME criminal offenses and look-back period, and terrorism standards. Also, the immigration standard for TSA PreCheck® is more stringent than the standards for TWIC

and HME. Consequently, individuals who have successfully passed the TSA PreCheck® STA have completed a comparable Level 3 STA.

For information about the NEXUS program, see

https://www.cbp.gov/travel/trusted-traveler-programs/nexus.

For information about the SENTRI program, see

https://www.cbp.gov/travel/trusted-traveler-programs/sentri.

See

8 CFR parts 103 and 235.

This proposed section on comparability and proposed § 1530.307 on fee comparability are closely related. As explained in the discussion of proposed § 1530.307, the fee structure proposed in this rulemaking is portioned into segments based on the services TSA provides when conducting STAs. When processing an STA application, if TSA can rely on a comparable check from an earlier STA, it does not have to perform that service again, and it will not have to charge the individual the full fee for that service. This reduces the financial burden on individuals requiring more than one STA.

H. Proposed Subpart G—Appeal and Waiver Procedures for Security Threat Assessments

1. Introduction.

In subpart G, TSA proposes redress provisions for individuals adversely affected by the STA requirements in 49 CFR part 1530. These proposed standards are consistent with the redress provisions codified in 49 CFR part 1515, Appeal and Waiver Procedures for Security Threat Assessments for Individuals, for individuals who are required to undergo STAs for the TWIC, HME, and certain air cargo programs.

Part 1515 will continue to apply according to its terms (although TSA may revise the part heading in the final rule for this rulemaking to clarify the scope of part 1515), and subpart G of part 1530 would apply to individuals who work for public transportation, railroads, and OTRB operators and undergo an STA set forth in this rulemaking. The standards in part 1515 were previously subject to notice and comment and have been in place for over 10 years. TSA believes the redress procedures we propose in subpart G are effective, efficient, and relatively easy to follow for individuals, including those who do not wish to hire an attorney for this process. However, TSA welcomes comments from covered entities that may be impacted by the proposed rule and the public on ways to improve the vetting process while still reducing security risk in the respective transportation modes.

For a full discussion of the development of the provisions in 49 CFR part 1515, see the HME interim final rule (68 FR 23852, May 5, 2003), and the TWIC final rule (72 FR 3492, Jan. 25, 2007).

Proposed subpart G describes the procedures for: (1) requesting waivers of the criminal standards; (2) appealing disqualifications based on the criminal history, immigration, or terrorism/other analyses checks; (3) ALJ review of TSA's waiver and appeal determinations; and (4) review of ALJ decisions by the TSA Final Decision Maker.

2. Proposed § 1530.601.

TSA proposes the scope and general requirements for subpart G in this section. Paragraphs (a) and (b) would establish that individuals who apply for an STA under part 1530 and who are eligible to request an appeal or waiver, fall within the scope of this part. Paragraph (c) explains that TSA does not disclose classified information or other information that is protected by law, or for which disclosure is not warranted. Paragraph (d) explains that an individual may, but is not required to, hire an attorney to represent them in an appeal or waiver proceeding, at the individual's expense. Paragraph (e) explains that the individual may request an extension of time for submitting appeal or waiver paperwork to TSA. These requests must be in writing, explain the reason for the extension, and be served on TSA prior to the deadline that needs to be extended. TSA generally grants extensions of time in the redress process when individuals meet these proposed standards.

3. Proposed § 1530.603.

Reserved.

4. Exhaustion of Administrative Remedies.

Before explaining the redress procedures an individual would use to appeal a TSA final decision (which are set forth below), it is important to discuss the principle of exhausting the administrative remedies TSA provides in subpart G before seeking review by the courts. The doctrine of exhaustion of remedies is based on the need to conserve judicial resources and ensure that factual issues are resolved by the agency with the expertise and responsibility for administering the program at issue. The doctrine allows agencies to develop a full factual record, correct errors, minimize costs, and create a uniform approach to the issues within its jurisdiction. This process benefits individuals by resolving disputes more quickly and at lower cost through TSA rather than the Federal courts. If the individual ultimately seeks review in the Court of Appeals following TSA's final agency order, the court will have a full record on which to base its review and the issues will be narrowed to those that truly require judicial review. In a case where TSA issued a preliminary denial of a TWIC application and the individual sought review by a U.S. District Court rather than first appealing the decision to TSA, the court dismissed his claim stating that he must first exhaust the administrative remedies in TSA's redress regulations.

The court stated that it needed a more developed factual record to effectively evaluate the case. Also, the court held that TSA should have the opportunity to correct any errors and narrow the issues, which can be achieved through exhausting administrative remedies, before initiating judicial review.

See Mohamed Al Seraji

Gowadia,

No. 8:16-cv-01637-JLS-JCG (C.D. Cal. Apr. 28, 2017).

For all of the foregoing reasons, TSA is proposing to require individuals to exhaust the administrative remedies set forth in subpart G before seeking judicial review.

Under this proposal, an individual would not seek judicial review until TSA has issued its “final agency order.” Throughout proposed subpart G, we clearly identify the point at which a TSA decision is a “final agency order,” and thus, when an individual may pursue judicial review. Note that for purposes of the rulemaking, “final agency order” and “final agency action” have the same meaning.

5. Proposed § 1530.605.

In this section, TSA proposes the procedures that would apply to appeals to TSA concerning the criminal, immigration, and mental capacity standards in part 1530.

Paragraph (a)(3) pertains to appeals based on determinations that an individual lacks mental capacity under proposed §§ 1530.501 and 1530.503. It is important to note that TSA does not have access to health-related databases and information concerning mental health issues. However, TSA may become aware of mental health issues through the CHRC, when an individual is found not guilty by reason of insanity of a disqualifying criminal conviction.

Paragraph (b) of this section proposes the grounds for appeal that may be raised. Individuals may assert that they do meet the eligibility standards and (1) TSA's decision was based on factually incorrect information; or (2) TSA failed to apply the eligibility standards in accordance with the regulations. For instance, if a criminal rap sheet reveals a conviction for a disqualifying offense, but fails to include the fact that the conviction was later overturned, an individual may use this as the basis for an appeal. Also, if TSA fails to correctly apply the list of criminal disqualifiers that appear in part 1530, this failure to adhere to the standards would constitute grounds for an appeal.

Paragraphs (c)-(h) of this section propose the procedures and timeframes for initiating an appeal, responding to a PDI or a PDIIR, correcting inaccurate records, and TSA's issuance of a final

determination. Under these procedures, an individual must request an appeal in writing to TSA, and it may be in the form of a request for the records on which TSA's PDI or PDIIR are based, or as a reply to the PDI or PDIIR. The individual must initiate the appeal within 60 days of service of the PDI or PDIIR, or request an extension of time. TSA may request documents from appellants that are necessary to make a final determination. If the data on which TSA made its preliminary decision of ineligibility is incomplete or inaccurate, proposed § 1530.605(f) describes how an individual can correct the information.

Paragraph (g) of this section proposes the procedures TSA would follow in making a final determination on eligibility and the individual's appeal. If TSA determines that the PDI/PDIIR is incorrect, TSA would withdraw the PDI/PDIIR and notify the individual, and the employer or operator, where applicable. If TSA determines that the preliminary determination was correct, TSA would serve a FDI on the individual, and where applicable, the employer or operator.

Paragraph (h) explains that TSA's FDI based on criminal, immigration, and mental capacity standards would constitute a final agency order or action under 49 U.S.C. 46110.

This means that upon receiving the FDI, there are no additional redress procedures within TSA for an individual to use. At this point, the individual may seek review in the Court of Appeals or accept TSA's final determination. These appeals based on criminal, mental capacity, and immigration involve objective facts and documents, and thus, it would be highly unlikely for TSA's final decision to be in error and need further review by an ALJ or the TSA Final Decision Maker.

This section of the code governs judicial review of TSA's final agency orders, and requires litigants to challenge final agency orders in the U.S. Court of Appeals for the District of Columbia Circuit within 60 days of TSA's order.

6. Proposed § 1530.607.

In this section, TSA sets forth proposed standards for requesting a waiver due to criminal offense or mental capacity. Under this proposed rule, TSA would not consider waiver requests for failure to meet immigration standards or for the terrorism/other analysis checks. It would be inconsistent with the 9/11 Act, the principles of security vetting, and similar waiver programs to entertain waiver requests for these issues. There is no reasonable basis on which TSA would determine that a waiver should be granted to an individual who does not meet the immigration standards or is deemed to pose a threat to national or transportation security, or of terrorism under 1530.507(a). As proposed in paragraph (b), however, TSA would consider a waiver when an individual (1) who committed a disqualifying offense, now asserts that he or she is rehabilitated and no longer poses a security risk; (2) who suffered from mental capacity issues, asserts that those health issues no longer exist; or (3) was disqualified for a criminal history under § 1530.507(b).

In paragraph (c), TSA proposes that individuals must complete the enrollment process, including paying all applicable fees, before he or she may apply for a waiver. For instance, an individual who knows he was convicted of a disqualifying offense within the previous 7 years and wishes to apply for a waiver of that offense, must complete the enrollment process so that TSA receives the pertinent criminal records from the FBI that verify the disqualifying issue. The applicant may submit a request for a waiver, which must be received

no earlier than

the date that the individual submitted the application and fee, and

no later than

60 days after final disposition of an appeal undertaken consistent with § 1530.605 of this subpart. An individual preserves the right submit a waiver request if he or she requests an extension of time in accordance with § 1530.601(e) of this part and the request is granted.

Paragraph (c)(2) describes the factors that TSA would consider when evaluating a waiver request, including the circumstances of the crime, restitution the individual has paid, court or other official records indicating that the individual no longer lacks mental capacity, the length of the prison term, the time that has elapsed since release from prison, criminal activity that has occurred following release from prison, and other factors relevant to the individual's waiver request. TSA would consider letters of reference from employers, clergy, probation officers, family members, and others with knowledge of the individual's character and rehabilitation since the crime occurred.

TSA adjudicators and analysts would evaluate the paperwork submitted, and communicate with the individual, if necessary, to gain additional information to ensure that the waiver request package is complete. TSA has established a Waiver Review Board, which includes security analysts and senior managers, to meet regularly to consider each waiver request. Because waiver decisions are somewhat subjective, TSA established this process to ensure consistency and avoid individual bias in reviewing waiver requests. The Waiver Review Board makes a recommendation to grant or deny a waiver to the Assistant Administrator. The Assistant Administrator reviews the recommendation and waiver paperwork and makes a final decision to grant or deny the waiver request.

Paragraph (d) explains that, within 60 days of TSA receiving the waiver request, TSA would serve a written decision granting or denying the waiver request on the individual. If TSA denies the waiver, the individual may appeal the decision to an ALJ. TSA's waiver denial is not a final agency action under 49 U.S.C. 46110. The individual may not, therefore, appeal this decision to the court system at this time, but must first seek review by an ALJ (as described in § 1530.611) and then if necessary, a TSA Final Decision Maker (as described in § 1530.613).

7. Proposed § 1530.609.

In this section, TSA proposes the procedures an individual would use to appeal TSA's preliminary determination that the individual failed the terrorism/other analyses portion of the STA. Paragraph (b) explains that the only grounds for an appeal of the terrorism/other analyses PDI is an assertion that the individual meets the standards for the STA for which he or she is applying. For instance, an individual could argue that he or she has been misidentified as another person who poses a security threat. Also, the individual may assert that even if he or she has been correctly identified, nonetheless, the person does not pose a security threat. Paragraph (c) states that the procedures proposed for § 1530.605(c)-(h), described above, also apply to this section.

In paragraph (d)(1) of this section, TSA proposes that 60 days after service of the individual's appeal, TSA would serve a final determination on the individual, and where applicable, the individual's employer. For instance, in this rulemaking, public transportation operators may not employ an individual in a security-sensitive position unless the individual successfully completed a Level 2 STA, which includes the terrorism/other analyses check. If TSA determines that an individual does not pass the Level 2 STA, TSA would have to notify the operator of this determination so that the operator does not assign the individual a security-sensitive position.

As proposed in paragraph (d)(2), if TSA determines that the PDI or PDIIR was issued in error, TSA would withdraw it by serving notification on the individual, and where appropriate, the employer.

Paragraph (e) addresses further review of a case in which TSA denies the individual's appeal. TSA's denial of the appeal under this section is not a final agency action under 49 U.S.C. 46110, and, therefore, the individual may not seek review in the courts at this juncture. If the individual wishes to seek additional review of TSA's final determination, he or she would seek review by an ALJ, and those procedures are set forth in proposed § 1530.611, described below. If the individual does not seek review by an ALJ within 30 days of TSA's decision, the decision then becomes final.

8. Proposed § 1530.611.

In this section, TSA proposes the procedures for an individual who wishes to seek review of a TSA decision by an ALJ. Paragraph (a) describes the two types of appeals that are eligible for ALJ review. An ALJ may review (1) an appeal of TSA's decision to deny a waiver as set forth in § 1530.607, and (2) an appeal of TSA's decision to deny an appeal based on the terrorism/other analyses check as set forth in § 1530.609.

Paragraph (b) explains how the individual must request ALJ review. The request must be in writing and served within 30 days of the date that TSA served the decision that the individual seeks to appeal to the ALJ. The individual must include the issues that the individual wants the ALJ to consider, copies of the individual's request for a waiver or initial appeal with all supporting documents, and copies of TSA's denial of the waiver request or appeal. Paragraph (b)(5) provides the address to use for ALJ review requests.

Paragraph (b)(2) explains that a request for ALJ review may not include material, evidence, or information that was not also presented to TSA in the original waiver request or appeal. As stated in paragraph (b)(3), if the individual has new material, evidence, or information that was not available to TSA, the individual should file a new waiver request or appeal with TSA, and the ALJ review request would be dismissed. To preserve ALJ resources and ensure that TSA makes decisions that fall within its expertise, in keeping with principles of the exhaustion of administrative remedies, any new information should be used to begin a new review by TSA, not the ALJ.

Paragraph (b)(4) explains that the individual may request an in-person hearing before the ALJ. Paragraph (c) addresses extensions of time during the ALJ review process. Both parties may request extensions of time in writing, and they should be received by the ALJ within a reasonable time before the date that must be extended. Paragraph (d) describes the duties of the ALJ, which are the same procedures that currently apply to cases that ALJs review in TWIC and HME waiver denials, and are fairly standard for administrative process. TSA proposes that the ALJ must have the appropriate level of security clearance necessary to review any information, including classified information, that is relevant to reviewing the case. As proposed, the ALJ should consider a request for an in-person hearing, by evaluating whether there are genuine issues of fact about the evidence or information the individual submits as part of his or her waiver request or appeal to TSA, or whether TSA's determination on the waiver or appeal was completed in accordance with the regulations. If an in-person hearing takes place, a verbatim transcript would be made, at no cost to the individual. If the individual fails to appear, the ALJ may issue a default judgment against the individual. The standard of proof for the hearing would be substantial evidence on the record.

Under the ALJ procedures, we propose that TSA will not disclose classified information or other information protected under the law. TSA, however, may prepare an unclassified summary of the information for the appealing party, if an unclassified summary can be provided consistent with national security concerns. The ALJ would review the record of decision, including any classified information upon which the decision relies, on an

ex parte, in camera

basis, and may consider this information in making a final decision if the information appears to be material and relevant.

Paragraph (f) describes the procedures that apply for the ALJ's final decision. As proposed, the ALJ would issue a final decision within 60 days from the close of the record, and serve the decision on the parties. Either party may appeal the ALJ decision to the TSA Final Decision Maker. If the ALJ overturns TSA's waiver or appeal decision and TSA does not appeal that to the Final Decision Maker, TSA would issue an order granting the waiver or withdraw the final determination on the appeal, as applicable. If the ALJ upholds TSA's decision and the individual does not seek review by the TSA Final Decision Maker, TSA would issue a final agency order denying a waiver to the individual or issue a Final Order of Ineligibility, as applicable.

9. Proposed § 1530.613.

TSA proposes the procedures for appealing an ALJ decision to the TSA Final Decision Maker in this section. The non-prevailing party in the ALJ proceeding may request a review of the ALJ's decision by the TSA Final Decision Maker within 30 days from the date of service of the ALJ's decision. Requests for review must be in writing, served on the opposing party, and relate only to whether the ALJ's decision was based on substantial evidence on the record. Within 60 days of receiving the request for review (or within 30 days of receiving a response from the other party), the TSA Final Decision Maker would issue the final decision. The decision of the TSA Final Decision Maker constitutes a final agency order in accordance with 49 U.S.C. 46110. If the individual wishes to appeal the TSA Decision Maker's final order, that appeal must be filed in the U.S. Court of Appeals for the District of Columbia Circuit or in the court of appeals of the United States for the circuit in which the person resides or has its principal place of business within 60 days of the TSA Decision Maker's final order.

IV. Analysis of Proposed Changes to Parts 1500, 1570, 1572, 1580, 1582, and 1584

A. Introduction

TSA proposes to make changes to 49 CFR parts 1500, 1570, 1572, 1580, 1582, and 1584 in this rulemaking. Each of these proposed changes are described below.

B. Proposed Changes to Part 1500

“Security threat assessment” would mean a procedure conducted by TSA consisting of one or more checks of relevant databases and other sources of information to verify an individual's identity, and to determine whether the individual is eligible for certain access to the nation's transportation systems, or for certain privileges or credentials. The proposed definition would provide a concrete understanding of the term that encapsulates the entire process of vetting the individual. It would also promote consistent use of terminology throughout TSA's regulations, most importantly that a security threat assessment is the overall process, which is comprised of one or more checks, such as a CHRC, or a check of databases. TSA considers the terms “security threat assessment,” as proposed here, and “security background check,” as established in the Security Training rulemaking to be functionally synonymous. TSA intends generally to reserve the use of “security background check” to the specific context of proposed § 1570.305.

C. Proposed Changes to Part 1570

As explained previously, this proposed rule is one of three rulemakings TSA is presently conducting to implement the 9/11 Act. The Security Training NPRM proposed extensive changes to part 1570, including reserving subpart D for proposals related to vetting. In this rulemaking, we propose changes to part 1570, subpart D, that build on the proposals in the Security Training NPRM.

TSA proposes to add § 1570.307 to subpart D to explain that specific vetting requirements for maritime and land transportation would be set in the parts that relate to each industry. For instance, the proposals for the owner/operators and individuals in freight rail would be in part 1580, public transportation and passenger rail would be in part 1582, and OTRB would be in part 1584.

As a matter of organization and clarity, we think it would be easier for each type of owner/operator and its employees to first look at the part of TSA regulations that applies to it, in order to determine who must be vetted and the level of vetting required. The requirements may vary, and we believe placing them in the specific part of title 49 that corresponds to that type of operator would be best.

D. Proposed Change to Part 1572

TSA proposes to revise the title of part 1572 from “Credentialing and Security Threat Assessments” to “Credentialing and Security Threat Assessments for the Hazardous Materials Endorsement and Transportation Worker Identification Credential Programs.” This is an administrative change TSA proposes to make to clarify that part 1572 applies only to the HME and TWIC programs. As our vetting authorities expand and there are new vetting standards in various parts of the CFR, we believe it is necessary to change the title of part 1572 so that individuals and owner/operators understand that it applies only to two programs.

E. Proposed Changes to Part 1580

TSA proposes to add “Subpart D—Security Threat Assessment Requirements for Owner/Operators and Individuals” to part 1580, as promulgated in the Security Training rulemaking, to implement the 9/11 Act vetting requirements in freight rail.

See

9/11 Act sections 1520 and 1522, which are codified at 6 U.S.C. 1170(d).

1. Proposed § 1580.3.

This section would make clear that the terms defined in §§ 1500.3, 1500.5, and 1503.103, of subchapter A, § 1530.3 of subchapter B, and § 1570.3 of subchapter D of this chapter, also apply when used in this part.

2. Proposed § 1580.301.

Paragraph (a) would set out the obligations of freight rail owner/operators with regard to STA requirements for the security coordinators who would be designated according to the requirements of the Security Training rulemaking. Section 1570.201(a), as set forth in the Security Training final rule, requires freight rail owner/operators to designate and use a primary and at least one alternate security coordinator. These requirements apply to the operators listed in 49 CFR 1580.101, which are:

• Class 1 freight railroad carriers;

• Rail hazardous materials shippers that transport one or more of the categories and quantities of rail security-sensitive materials (RSSM) in a high threat urban area (HTUA);

• Rail carrier that serves as a host railroad to a Class 1 carrier, rail hazardous materials shipper that transports RSSM in an HTUA, or a passenger operation described in 49 CFR 1582.101.

Proposed paragraph (a)(1) would set out the primary requirement that a covered freight rail owner/operator must not authorize or permit an individual to serve as a primary or alternate security coordinator unless he or she has successfully completed a Level 3 STA and holds a current DOE from TSA.

As explained above in section II.B.2. of the preamble, security coordinators should undergo a Level 3 STA because of their access to sensitive-security and personally-identifiable information, as well as the critical security functions they perform. These responsibilities and functions require a high level of confidence that the individual is trustworthy. As explained above, a Level 3 STA consists of a criminal history, terrorism/other analyses, and immigration check. Successful completion of this Level 3 STA would increase confidence that the individual is sufficiently trustworthy to assume the position.

To comply with proposed paragraph (a)(1), owner/operators would need a definitive source of information from TSA regarding an individual's STA. TSA expects to create a web-based portal for owner/operators to access, which would include the results of the STAs of that owner/operator's workers. TSA has considered other methods of employer notification, such as mailing letters, but believes this method would be more cost-effective and minimizes the risk of fraud or missing records associated with paper documents and mail service. TSA invites comment from the industry as to other potential methods of notification, as well as the relative advantages and disadvantages of the options.

Paragraph (a)(2) would require the owner/operator to retain records documenting compliance with paragraph (a)(1). TSA does not propose a specific format of documentation. TSA prefers to retain flexibility to permit various formats depending on owner/operator needs and capabilities. TSA will work with each owner/operator to assure that the recordkeeping process complies with TSA's inspection needs. As part of inspecting compliance with the STA requirements, TSA must be able to review these records to ensure that the STA requirements have been met at the appropriate time. TSA invites comment from owner/operators as to how most will satisfy this requirement and other ideas for meeting it.

Paragraph (b)(1) would set out the primary requirement that a covered freight rail owner/operator must not authorize or permit an individual to serve as a security-sensitive employee, unless he or she has successfully completed a Level 2 STA and holds a current DOE from TSA. TSA proposes to require a Level 2 STA, consisting of terrorism/other analyses and immigration check in the United States, for security-sensitive employees, which satisfies the requirements of section 1520 of the 9/11 Act.

As explained above in the discussion of security coordinator STA requirements, TSA expects to create a web-based portal for owner/operators to access, which would include the results of the STAs of that owner/operator's security-sensitive employees.

Proposed paragraph (b)(2), with regard to recordkeeping, is similar to proposed paragraph (a)(2) explained above.

Paragraph (c) proposes continuing responsibilities for owner/operators after the initial vetting of security coordinators and security-sensitive employees. Paragraph (c)(1) would require an owner/operator to remove an individual from a position as a security coordinator or a security-sensitive employee if notified by TSA that the individual is no longer eligible for the position. TSA would issue such a notification if, for example, the recurrent terrorism/other analyses check subsequently reveals information indicating that the individual poses or may pose a threat to transportation security or national security, or of terrorism.

Paragraph (c)(2) would require an owner/operator that becomes aware of information that an individual is or may not be eligible to serve as a security coordinator or security-sensitive employee to notify TSA immediately. This responsibility would arise, for example, if the owner/operator becomes aware that a security coordinator has been arrested for or convicted of a potentially disqualifying crime.

Paragraph (c)(3) would provide that an owner/operator may reassign an individual as a security coordinator or security-sensitive employee if notified by TSA that he or she regained eligibility. For example, if TSA notified an owner/operator under proposed paragraph (c)(1) that an individual is ineligible, but subsequently determines that the factor causing the ineligibility had been resolved, TSA would notify the owner/operator under paragraph (c)(3).

2. Proposed § 1580.303.

This section would set out the obligations of individuals employed by covered freight rail owner/operators who must undergo an STA, either as a security coordinator (proposed paragraph (a)) or a security-sensitive employee (proposed paragraph (b)).

Paragraph (a) would provide that an individual must not work as a security coordinator for a freight rail owner/operator, unless he or she successfully completes a Level 3 STA and holds a current Determination of Eligibility. Paragraph (a) would also specify that the criminal history records check conducted as part of the Level 3 STA would be adjudicated against the list of disqualifying crimes in proposed § 1530.503, which, as described above, would be the list of disqualifying crimes that currently apply to certain surface and maritime workers under § 1572.103.

Paragraph (b) would provide that an individual must not work as a security-sensitive employee unless he or she successfully completes a L

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