SUPPLEMENTARY INFORMATION:

Background and Discussion

On April 4, 2024, CISA published a NPRM, “Cyber Incident Reporting for Critical Infrastructure Act Reporting Requirements,” 89 FR 23644, that was required by the Cyber Incident Reporting for Critical Infrastructure Act of 2022 (CIRCIA).^[1] CIRCIA requires covered entities to report to CISA within certain prescribed timeframes any covered cyber incidents, ransom payments made in response to a ransomware attack, and any substantial new or different information discovered related to a previously submitted report.^[2] CIRCIA further requires the Director of CISA to implement these new reporting requirements through rulemaking. The NPRM solicits public comment on proposed regulations that would codify these reporting requirements.

In proposed 6 CFR 226.2, Applicability, CISA proposed a list of entities that would be required to report under the proposed regulation.^[3] Specifically, in § 226.2(b)(14), CISA proposed sector-based criteria for “Transportation system entities” that would be considered covered entities.^[4] As noted in the NPRM, CISA aligned the aforementioned sector-based criteria's description of a covered entity to include those entities identified by TSA as requiring cyber incident reporting and, in some cases, enhanced cybersecurity measures.^[5] To facilitate this alignment, CISA's NPRM proposed § 226.2(b)(14) that an “entity required by the Transportation Security Administration to report cyber incidents” or otherwise meets one or more criteria related to owners and operators of various non-maritime transportation system infrastructure, such as freight railroad, public transportation and passenger railroads (PTPR), pipeline facilities and systems, over-the-road bus (OTRB) operations, passenger and all-cargo aircraft, indirect air carriers, airports, and Certified Cargo Screening Facilities, would be considered a covered entity.^[6] Each of these proposed criteria included specific references to where these entities are identified in TSA's current regulations.^[7] However, for the sector-based criteria that would be applicable to pipeline facilities or systems, the proposed criterion references a section, 49 CFR 1586.101, that TSA intends to include in TSA's forthcoming Enhancing Surface Cyber Risk Management NPRM, which has not yet been published in the Federal Register .^[8] Until that rule is finalized, the section related to pipeline facilities or systems does not exist in the CFR. Because the CIRCIA NPRM does not specifically describe which pipeline facilities or systems that CISA proposes as covered entities until TSA's rulemaking is finalized, CISA's intent through this notice is to clarify and correct this point.

As stated in the CIRCIA NPRM, CISA's intent is to align CIRCIA requirements applicable to aviation and surface transportation entities with TSA's requirements to support reduction of duplication and to avoid unintended gaps in cyber incident reporting. As such, CISA proposed applicability criteria describing covered entities in 6 CFR 226.2(b)(14) that include entities that are currently required, or will be required, to report ( printed page 47472) cyber incidents to TSA.^[9] It is for this reason that CISA specifically proposed describing a covered entity as an “entity [that] is required by the Transportation Security Administration to report cyber incidents” in proposed 6 CFR 226.2(b)(14), so that any entities, such as pipeline facilities or systems, that are required to currently report cyber incidents to TSA under Security Directives would also be considered covered entities that are required to report under CIRCIA.

For the surface transportation sector, TSA currently requires reporting of cyber incidents to CISA by owner/operators of certain freight railroads, passenger railroads, rail transit systems, and hazardous and natural gas pipeline facilities and systems pursuant to Security Directives issued under the authority of 49 U.S.C. 114( l )(2).^[10] Under these Security Directives, TSA notifies owner/operators of pipeline facilities or systems directly if the requirements in the Security Directive are applicable to them. Using a risk-based approach, a small percentage within each mode of transportation are required to report cybersecurity incidents, but these entities represent a significant portion of capacity, throughput, and ridership for each of these modes. As indicated in the CIRCIA NPRM, and as described in this notice, CISA proposes that all such owners/operators of pipeline facilities and systems identified by TSA and required to report cybersecurity incidents pursuant to TSA Security Directives are considered covered entities under 6 CFR 226.2(b)(14) until TSA finalizes its Enhancing Surface Cyber Risk Management rule.

To address the concern regarding cross-referencing a regulatory section that does not currently exist, CISA is issuing this correction to remove the reference to that specific regulatory section and, instead, propose criterion to make clear that CIRCIA's description of a covered entity for pipeline facilities or systems includes any entity that is currently required by TSA to report cyber incidents under a Security Directive or is otherwise identified as required to report under TSA's final regulations. For owner/operators of pipeline facilities or systems not currently subject to reporting requirements under TSA's Security Directives, it is CISA's understanding, through consultation with TSA, that TSA intends to continue using a risk-based approach in determining entities subject to its regulations, similar to its Security Directive approach and that applicability of cyber incident reporting requirements beyond the existing Security Directives will not be substantially expanded. TSA's Security Directives indicate that approximately 100 pipeline systems are considered the most critical.^[11] CISA acknowledges the total number of owner/operators may slightly change consistent with an updated risk analysis developed for purposes of TSA's proposed rule. However, CISA continues to believe the Regulatory Impact Analysis for the CIRCIA rulemaking is an accurate estimate insomuch that the applicability of the TSA covered entities will continue to be approximately 115 entities.^[12]

As mentioned in the CIRCIA NPRM, CISA believes that aligning CIRCIA's Applicability section with the population of entities from which TSA requires cyber incident reporting or at which TSA requires the implementation of enhanced cybersecurity measures is appropriate for CIRCIA and consistent with the factors contained in 6 U.S.C. 681b(c)(1). CISA will continue to coordinate with TSA throughout the rulemaking process to harmonize CIRCIA's Applicability section with TSA, to the maximum extent practicable.

Comments on the NPRM and related material must be submitted on or before July 3, 2024. See Cyber Incident Reporting for Critical Infrastructure Act (CIRCIA) Reporting Requirements; Extension of Comment Period at 89 FR 37141. DHS believes this correction does not warrant extending the current 90-day comment period for the NPRM.

Correction