False Statements Regarding Security Background Checks, 44665-44669 [E8-17515]

Download as PDF Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations Guidelines for Assessing Forfeitures The Commission and its staff may use these guidelines in particular cases. The Commission and its staff retain the discretion to issue a higher or lower forfeiture than provided in the guidelines, to issue no forfeiture at all, or to apply alternative or additional sanctions as permitted by the statute. The forfeiture ceiling per violation or per day for a continuing violation stated in section 503 of the Communications Act and the Commission’s rules are described in § 1.80(b)(5)(iii). These statutory maxima became effective September 2, 2008. Forfeitures issued under other sections of the Act are dealt with separately in section III of this note. * * * * * * DEPARTMENT OF HOMELAND SECURITY U.S. code citation 47 U.S.C. 202(c) ............... 47 U.S.C. 203(e) .............. 47 47 47 47 47 47 47 47 47 47 U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. U.S.C. 205(b) .............. 214(d) .............. 219(b) .............. 220(d) .............. 223(b) .............. 362(a) .............. 362(b) .............. 386(a) .............. 386(b) .............. 503(b)(2)(A) ..... 47 U.S.C. 503(b)(2)(B) ..... 47 U.S.C. 503(b)(2)(C) ..... 47 U.S.C. 503(b)(2)(D) ..... 47 U.S.C. 507(a) .............. 47 U.S.C. 507(b) .............. 47 U.S.C. 554 ................... Maximum penalty after DCIA adjustment ($) 9,600 530 9,600 530 18,200 1,320 1,320 9,600 75,000 7,500 1,100 7,500 1,100 37,500 375,000 150,000 1,500,000 325,000 3,000,000 16,000 112,500 750 110 650 [FR Doc. E8–17254 Filed 7–30–08; 8:45 am] yshivers on PROD1PC62 with RULES BILLING CODE 6712–01–P VerDate Aug<31>2005 15:05 Jul 30, 2008 Jkt 214001 Transportation Security Administration 49 CFR Part 1570 [Docket No. TSA–2008–0011] RIN 1652–AA65 False Statements Regarding Security Background Checks Transportation Security Administration, DHS. ACTION: Interim final rule; request for comments. AGENCY: SUMMARY: This interim final rule codifies in the Code of Federal Regulations recently-enacted statutory provisions that prohibit public transportation agencies, railroad carriers, and their respective contractors and subcontractors from knowingly misrepresenting Federal guidance or regulations concerning security background checks for certain individuals. Effective Date: This rule is effective July 31, 2008. Comment Date: Comments must be received by September 2, 2008. ADDRESSES: You may submit comments on this rulemaking, identified by the Transportation Security Administration (TSA) docket number of this interim final rule, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system, using any one of the following methods: Electronically: You may submit comments through the Federal eRulemaking portal at http:// DATES: PO 00000 Frm 00051 * * * Statutory amount ($) 202(c) Common Carrier Discrimination .................................................................................................................. 203(e) Common Carrier Tariffs .............................................................................................................................. 205(b) Common Carrier Prescriptions ................................................................................................................... 214(d) Common Carrier Line Extensions .............................................................................................................. 219(b) Common Carrier Reports ........................................................................................................................... 220(d) Common Carrier Records & Accounts ....................................................................................................... 223(b) Dial-a-Porn .................................................................................................................................................. 364(a) Forfeitures (Ships) ...................................................................................................................................... 364(b) Forfeitures (Ships) ...................................................................................................................................... 386(a) Forfeitures (Ships) ...................................................................................................................................... 386(b) Forfeitures (Ships) ...................................................................................................................................... 634 Cable EEO ...................................................................................................................................................... (5) * * * (iii) * * * * Section III. Non-Section 503 Forfeitures That Are Affected by the Downward Adjustment Factors Violation Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. Sec. 44665 Fmt 4700 Sfmt 4700 9,600, 530/day. 9,600, 530/day. 18,200. 1,320/day. 1,320. 9,600/day. 75,000/day. 7,500 (owner). 1,100 (vessel master). 7,500/day (owner). 1,100 (vessel master). 650/day. www.regulations.gov. Follow the online instructions for submitting comments. Mail, In Person, or Fax: Address, hand-deliver, or fax your written comments to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001; Fax 202–493–2251. The Department of Transportation (DOT), which maintains and processes TSA’s official regulatory dockets, will scan your submission and post it to FDMS. See SUPPLEMENTARY INFORMATION for formatting and other information about comment submissions. FOR FURTHER INFORMATION CONTACT: Ellen Siegler, Assistant Chief Counsel, TSA–2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202–4220; telephone (571) 227–2723; facsimile (571) 227– 1379; e-mail Ellen.Siegler@dhs.gov. SUPPLEMENTARY INFORMATION: This interim final rule is being adopted without prior notice and prior public comment. However, the TSA will still provide an opportunity for public comment on this rulemaking. 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. See ADDRESSES above for information on where to submit comments. Please identify the docket number of this interim final rule at the beginning of each comment. TSA encourages commenters to provide their names and addresses. The most helpful comments reference a specific portion of the E:\FR\FM\31JYR1.SGM 31JYR1 44666 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations rulemaking, explain the reason for any recommended change, and include supporting data. 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 delivery, 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 selfaddressed, stamped postcard on which the docket number appears. We will stamp the receipt date on the postcard and mail it to you. TSA will file in the public docket all comments received by TSA, except for comments containing confidential information and sensitive security information (SSI).1 TSA will consider all comments received on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is publicly available, and will be available for public inspection before and after the comment closing date. yshivers on PROD1PC62 with RULES Handling of Confidential or Proprietary Information and Sensitive Security Information (SSI) Submitted in Public Comments Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on this rulemaking. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in the FOR FURTHER INFORMATION CONTACT section. TSA will not place such comments 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 will note in the public docket that TSA has received such materials from the commenter. However, if TSA determines that portions of these comments may be made publicly 1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is information obtained or developed in the conduct of security activities, the disclosure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information, or be detrimental to the security of transportation. The protection of SSI is governed by 49 CFR part 1520. VerDate Aug<31>2005 15:05 Jul 30, 2008 Jkt 214001 available, TSA may include redacted versions in the public docket. If TSA receives a request to examine or copy information that is not in the public docket, TSA will treat that request as any other request under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and under DHS’ FOIA regulation (published in 6 CFR part 5). Reviewing Comments in the Docket Please be aware that anyone is able to search the electronic form of comments received into our dockets by the name of the individual submitting each comment (or signing each comment, in the cases of comments submitted on behalf of associations, businesses, labor unions, etc.). You may review the applicable Privacy Act Statement published in the Federal Register on April 11, 2000 (65 FR 19477) (available online at http://DocketInfo.dot.gov). You may review TSA’s electronic public docket on the Internet at http:// www.regulations.gov. In addition, DOT’s Docket Management Facility provides paper copies of docket materials, equipment to facilitate docket review, and staff assistance to the public. To obtain assistance or to review comments in TSA’s public docket, you may visit this facility from 9 a.m. to 5 p.m., Monday through Friday (excluding legal holidays), or you may call (202) 366– 9826. This docket operations facility is located in the West Building Ground Floor, Room W12–140 at 1200 New Jersey Avenue, SE., Washington, DC 20590. Availability of Rulemaking Document You can get an electronic copy using the Internet by— (1) Searching the electronic Federal Docket Management System (FDMS) Web page at http://www.regulations.gov; (2) Accessing the Government Printing Office’s Web page at http:// www.gpoaccess.gov/fr/index.html; or (3) Visiting TSA’s Security Regulations Web page at http:// www.tsa.gov and accessing the link for ‘‘Research Center’’ at the top of the page. In addition, copies are available by writing or calling the individual whose contact information is listed in the FOR FURTHER INFORMATION CONTACT section of this interim final rule. Make sure to identify the docket number of this rulemaking in communications with TSA. Small Entity Inquiries The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 and regulations within TSA’s jurisdiction. Any small entity that has a question regarding this document may contact the individual whose contact information is listed in FOR FURTHER INFORMATION CONTACT . Persons can obtain further information regarding SBREFA on the Small Business Administration’s Web page at http:// www.sba.gov/advo/laws/law_lib.html. Good Cause for Immediate Adoption This action is being taken without providing a prior opportunity for notice and comment, and it provides for an effective date less than 30 days after publication in the Federal Register. Sections 553(b) and (d) of the Administrative Procedure Act (APA) (5 U.S.C. 553) authorize agencies to dispense with certain notice procedures for rules when they find ‘‘good cause’’ to do so. Under section 553(b), the requirements of notice and opportunity for comment do not apply when the agency for good cause finds that those procedures are ‘‘impracticable, unnecessary, or contrary to the public interest.’’ Section 553(d) allows an agency, upon finding good cause, to make a rule effective immediately, thereby avoiding the 30-day delayed effective date requirement of section 553. TSA finds that notice and public comment to this final rule are impracticable, unnecessary, and contrary to the public interest. The provisions in this interim final rule adopt verbatim sections 1414(e) (6 U.S.C. 1143(e)) and 1522(e) (6 U.S.C. 1170(e)) of the Implementing Recommendations of the 9/11 Commission Act of 2007, Public Law 110–153 (9/11 Act). Under sections 1414(e) and 1522(e) of the 9/11 Act, it is now a violation of that statute for public transportation agencies, railroad carriers, and their respective contractors and subcontractors to knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the DHS Secretary related to security background check requirements for covered individuals when conducting a security background check. This rule adds to the Code of Federal Regulations (CFR), without change, the same prohibitions as directed by the statute. This rule does not prohibit any conduct that is not already prohibited by the statute. Accordingly, it is appropriate for TSA to issue this regulation as an interim final rule. For the same reason, TSA finds E:\FR\FM\31JYR1.SGM 31JYR1 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations that there is good cause to make this rule effective immediately. yshivers on PROD1PC62 with RULES I. Summary This final rule codifies in the Code of Federal Regulations sections 1414(e) and 1522(e) of the 9/11 Act, which prohibit public transportation agencies, railroad carriers, and their respective contractors and subcontractors from knowingly misrepresenting Federal guidance or regulations concerning security background checks for covered individuals. Under this rule, entities operating mass transit systems, passenger rail systems, and freight rail carriers must understand TSA’s regulations and guidance and represent these background checks accurately to their employees. This regulation will apply to regulations and guidance issued by TSA both before and after enactment of the 9/11 Act. At present, TSA has issued one rule and several guidance documents relating to security background checks for covered individuals. These are the Transportation Worker Identification Credential (TWIC) regulation (49 CFR part 1572) and guidance documents for freight railroad and mass transit operators. The TWIC rule applies, in relevant part, to land transportation workers who need unescorted access to secure areas of maritime facilities and to vessels regulated under the Maritime Transportation Security Act, Public Law 107–295. The railroad guidance applies to rail carriers that transport materials poisonous by inhalation (commonly referred to as Toxic Inhalation Hazard (TIH) materials). The guidance can be found at http://www.tsa.gov/ what_we_eo/layers/trip/ freight_rail_security.shtm . The mass transportation guidance applies to entities that operate mass transit and rail passenger systems. This guidance can be found at http://www.tsa.dhs.gov/ assets/pdf/guidance_employee_back ground_checks.pdf. II. 9/11 Act—False Statements Regarding Security Background Checks by Public Transportation Agency or Railroad Carrier The 9/11 Act was enacted on August 3, 2007. Sections 1414 and 1522 of the Act address guidance issued by the Assistant Secretary of TSA concerning security background checks of covered individuals employed by public transportation agencies, railroad carriers, and their respective contractors and subcontractors. In particular, sections 1414(e) and 1522(e) prohibit public transportation agencies, railroad carriers, and their contractors and VerDate Aug<31>2005 15:05 Jul 30, 2008 Jkt 214001 subcontractors from knowingly misrepresenting the scope, application, or meaning of any rules, directives, or guidance concerning background checks to employees, arbiters in an arbitration proceeding, or any other relevant persons. Sections 1414(e) and 1522(e) expressed this concern about misrepresentation in nearly-identical language and directed TSA to issue a rule addressing that concern within one year of the statute’s enactment. Section 1414(e), addressing public transportation, provides: A public transportation agency or a contractor or subcontractor of a public transportation agency may not knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check. Not later than 1 year after the date of enactment of this Act, the Secretary shall issue a regulation that prohibits a public transportation agency or a contractor or subcontractor of a public transportation agency from knowingly misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check. Similarly, section 1522(e) provides: A railroad carrier or a contractor or subcontractor of a railroad carrier may not knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check. Not later than 1 year after the date of enactment of this Act, the Secretary shall issue a regulation that prohibits a railroad carrier or a contractor or subcontractor of a railroad carrier from knowingly misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary related to security background check requirements for covered individuals when conducting a security background check. This interim final rule codifies the language of sections 1414(e) and 1522(e) of the 9/11 Act into 49 CFR part 1570. It also codifies the definitions of ‘‘covered individual’’ as contained in sections 1414(a) and 1515(a), ‘‘public transportation agency’’ in section PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 44667 1402(5), ‘‘railroad’’ and ‘‘railroad carrier’’ in sections 1501(7) and (8), respectively, and ‘‘security background check’’ in sections 1414(a) and 1522(a). The regulatory text of this rule is essentially identical to the statutory provisions. III. TSA’s Background Check Initiatives To date, TSA has issued one regulation and several guidance documents that relate to background checks in the public transportation and railroad sectors. In the future, DHS and TSA may undertake other initiatives. Today’s rulemaking prohibits public transportation agencies, railroad carriers, and their respective contractors and subcontractors from knowingly misrepresenting to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary of the Department of Homeland Security related to security background check requirements for covered individuals when conducting a security background check. Prior to the enactment of the 9/11 Act, TSA issued regulations requiring credentialing and security threat assessments for certain maritime and land transportation workers. Specifically, under the TWIC regulations, individuals who require unescorted access to secure areas of maritime ports and vessels must undergo security threat assessments and must obtain biometric credentials to be used in access control systems installed by regulated facilities and vessels.2 TSA conducts a security threat assessment, including a criminal history records check against a specified list of disqualifying criminal offenses, before issuing a TWIC. Some public transportation and railroad carrier employees may require TWICs under the TSA TWIC rule if they require unescorted access to secure areas of regulated vessels or maritime facilities. Also prior to the enactment of the 9/11 Act, TSA issued guidance recommending that entities operating mass transit and passenger rail systems, and railroad carriers that transport TIH materials, conduct background checks on key employees. In 2006 DHS and DOT recommended that TIH railroad carriers establish procedures for background checks for contractor employees with unmonitored access to 2 49 E:\FR\FM\31JYR1.SGM CFR part 1572. 31JYR1 44668 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations yshivers on PROD1PC62 with RULES company-designated critical infrastructure.3 On February 12, 2007, DHS and DOT issued additional guidance to TIH railroad carriers concerning the recommended scope and procedures for voluntarily conducted background checks. DHS and DOT noted that many TIH railroad carriers use criminal background checks to assess the suitability of their employees. DHS and DOT recommended that, to the extent that TIH railroad carriers choose to conduct criminal background checks for individuals with unmonitored access to company-designated critical infrastructure, they should consider using the Federally-established list of disqualifying crimes applicable to hazmat drivers and port transportation workers contained in 49 CFR 1572.103. DHS and DOT further recommended that the railroad industry should consider establishing a vigorous internal redress process for adversely affected job applicants and personnel, including an appeal and waiver process similar to the processes established for holders of commercial driver’s licenses who apply for hazardous materials endorsements 4 and for port transportation workers.5 In 2006, TSA and the Federal Transit Administration (FTA) jointly issued guidance recommending a number of practices to improve the security of their systems.6 In this guidance, TSA and FTA recommended that these systems conduct background investigations, such as criminal history and motor vehicle records checks, on all new frontline operators and maintenance employees and on those employees and contractors with access to sensitive security information and security critical facilities and systems, such as tunnels, surveillance, monitoring, and intrusion detection systems. On February 28, 2008, consistent with the February 12, 2007 guidance to TIH freight railroad carriers, TSA and FTA issued additional guidance in which they recognized that some entities operating mass transit and passenger rail systems were using criminal background checks to assess the suitability of their employees. TSA and 3 The TIH railroad guidance can be found at: http://www.tsa.gov/what_we_do/layers/trip/ freight_rail_security.shtm. 4 In accordance with 49 U.S.C. 5103a, holders of commercial driver’s licenses who apply for hazardous materials endorsements must undergo security threat assessments under 49 CFR part 1572. Procedures for waivers and appeals are found at 49 CFR part 1515. 5 49 CFR 1572.103. 6 The transit guidelines can be found at on the internet at: http://transit-safety.volpe.dot.gov/ Security/SecurityInitiatives/ActionItems/ actionlist.asp#14. VerDate Aug<31>2005 15:05 Jul 30, 2008 Jkt 214001 FTA suggested that these entities consider using the Federally-established list of disqualifying crimes applicable to hazmat drivers and port transportation workers found in 49 CFR 1572.103. TSA and FTA further suggested that entities operating mass transit and passenger rail systems also consider using an appeal and waiver process similar to the process established for hazardous material drivers and port transportation workers found in 49 CFR part 1515. Public transportation agencies, railroad carriers, and their contractors, may not misrepresent the recommendations in any of these TSA guidance documents to their employees. IV. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501. et seq.) requires that a Federal agency consider the impact of paperwork and other information collection burdens imposed on the public and, under the provisions of PRA section 3507(d), obtain approval from the Office of Management and Budget (OMB) for each collection of information it conducts, sponsors, or requires through regulations. TSA has determined that there are no current or new information collection requirements associated with this rule. V. Economic Impact Analyses Regulatory Evaluation Summary Changes to Federal regulations must undergo several economic analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and Review (58 FR 51735, October 4, 1993), directs each Federal agency to propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 2531–2533) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation). Because this rule does not add any PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 requirements to those in the statute, the impact of this rule is negligible. Thus, TSA has not performed a cost/benefit analysis. Executive Order 12866 Assessment E.O. 12866, ‘‘Regulatory Planning and Review’’ (58 FR 51735, October 4, 1993) provides for making determinations as to whether a regulatory action is ‘‘significant’’ and therefore subject to OMB review and the requirements of the Order. Executive Order 12866 classifies a rule as significant if it meets any one of a number of specified conditions, including economic significance, which is defined as having an annual impact on the economy of $100 million. A regulation is also considered a significant regulatory action if it raises novel legal or policy issues. This regulation is not significant under E.O. 12866. TSA has concluded, however, that the costs of the rule will be minimal for the reasons presented below. This rule codifies the language of sections 1414(e) and 1522(e) of the 9/11 Act prohibiting knowingly misrepresenting TSA’s background check requirements or recommendations and incorporates it into 49 CFR part 1570. The regulatory text is identical to the statutory provisions. This regulation should have no economic impact as it codifies the requirement that prohibits public transportation agencies, railroad carriers and their contractor and subcontractors from knowingly misrepresenting DHS guidance, directives, or regulations concerning security background checks for covered individuals. Stated simply, it codifies the statutory mandate that these entities may not knowingly make false statements regarding DHS security background check requirements We expect affected entities to inform their employees and contractors about their obligations via email or letter and we believe that it would involve minimal cost. This rule will benefit individuals employed by public transportation agencies, railroad carriers, and their contractor and subcontractors. These individuals will be given correct information about DHS background check guidance or requirements. Regulatory Flexibility Act Assessment The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), requires agencies to perform a review to determine whether a proposed or final rule will have a significant E:\FR\FM\31JYR1.SGM 31JYR1 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations economic impact on a substantial number of small entities when the Administrative Procedure Act (APA) requires notice and comment rulemaking. TSA has not assessed whether this rule will have a significant economic impact on a substantial number of small entities, as defined in the RFA. When an agency publishes a rulemaking without prior notice and an opportunity for comment, the RFA analysis requirements do not apply. TSA is adopting this interim final rule without prior notice and opportunity for public comment. Therefore, no RFA analysis is provided. International Trade Impact Assessment The Trade Agreement Act of 1979 prohibits Federal agencies from establishing any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. TSA has assessed the potential effect of this rulemaking and has determined that it will not create any unnecessary obstacles to foreign commerce. yshivers on PROD1PC62 with RULES Unfunded Mandates Assessment The Unfunded Mandates Reform Act of 1995 is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in a $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a ‘‘significant regulatory action.’’ This rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply and TSA has not prepared a statement under the Act. VI. Executive Order 13132, Federalism TSA has analyzed this final rule under the principles and criteria of E.O. 13132, Federalism. We have determined that this action will not have a substantial direct effect on the States, or the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, VerDate Aug<31>2005 15:05 Jul 30, 2008 Jkt 214001 have determined that this action does not have federalism implications. VII. Environmental Analysis TSA has reviewed this action for purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4347) and has determined that this action will not have a significant effect on the human environment. VIII. Energy Impact Analysis The energy impact of the action has been assessed in accordance with the Energy Policy and Conservation Act (EPCA), Public Law 94–163, as amended (42 U.S.C. 6362). We have determined that this rulemaking is not a major regulatory action under the provisions of the EPCA. List of Subjects in 49 CFR Part 1570 Appeals, Commercial drivers license, Criminal history background checks, Explosives, Facilities, Hazardous materials, Incorporation by reference, Maritime security, Motor carriers, Motor vehicle carriers, Ports, Seamen, Security measures, Security threat assessment, Vessels, Waivers. The Amendments For the reasons set forth in the preamble, the Transportation Security Administration amends Chapter XII of Title 49 of the Code of Federal Regulations, as follows: I PART 1570—GENERAL RULES 1. The authority citation for part 1570 is revised to read as follows: I Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 46105; 18 U.S.C. 842, 845; 6 U.S.C. 469; Pub. L. 110–53 secs. 1414, 1522. I 2. Add § 1570.13 to read as follows: § 1570.13 False Statements Regarding Security Background Checks by Public Transportation Agency or Railroad Carrier. (a) Scope. This section implements sections 1414(e) (6 U.S.C. 1143) and 1522(e) (6 U.S.C. 1170) of the ‘‘Implementing Recommendations of the 9/11 Commission Act of 2007,’’ Pub. L. 110–53. (b) Definitions. Covered individual means an employee of a public transportation agency or a contractor or subcontractor of a public transportation agency or an employee of a railroad carrier or a contractor or subcontractor of a railroad carrier. Public transportation agency means a publicly-owned operator of public transportation eligible to receive Federal PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 44669 assistance under chapter 53 of title 49, United States Code. Railroad has the meaning that term has in section 20102 of title 49, United States Code. Railroad carrier has the meaning that term has in section 20102 of title 49, United States Code. Security background check means reviewing the following for the purpose of identifying individuals who may pose a threat to transportation security, national security, or of terrorism: (i) Relevant criminal history databases; (ii) In the case of an alien (as defined in sec. 101 of the Immigration and Nationality Act (8 U.S.C. 1101(a)(3)), the relevant databases to determine the status of the alien under the immigration laws of the United States; and (iii) Other relevant information or databases, as determined by the Secretary of Homeland Security. (c) Prohibitions. (1) A public transportation agency or a contractor or subcontractor of a public transportation agency may not knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary of Homeland Security related to security background check requirements for covered individuals when conducting a security background check. (2) A railroad carrier or a contractor or subcontractor of a railroad carrier may not knowingly misrepresent to an employee or other relevant person, including an arbiter involved in a labor arbitration, the scope, application, or meaning of any rules, regulations, directives, or guidance issued by the Secretary of Homeland Security related to security background check requirements for covered individuals when conducting a security background check. Issued in Arlington, Virginia, on July 25, 2008. Gale Rossides, Deputy Administrator. [FR Doc. E8–17515 Filed 7–30–08; 8:45 am] BILLING CODE 9110–05–P E:\FR\FM\31JYR1.SGM 31JYR1

Agencies

[Federal Register Volume 73, Number 148 (Thursday, July 31, 2008)]
[Rules and Regulations]
[Pages 44665-44669]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17515]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1570

[Docket No. TSA-2008-0011]
RIN 1652-AA65


False Statements Regarding Security Background Checks

AGENCY: Transportation Security Administration, DHS.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule codifies in the Code of Federal 
Regulations recently-enacted statutory provisions that prohibit public 
transportation agencies, railroad carriers, and their respective 
contractors and subcontractors from knowingly misrepresenting Federal 
guidance or regulations concerning security background checks for 
certain individuals.

DATES: Effective Date: This rule is effective July 31, 2008.
    Comment Date: Comments must be received by September 2, 2008.

ADDRESSES: You may submit comments on this rulemaking, identified by 
the Transportation Security Administration (TSA) docket number of this 
interim final rule, to the Federal Docket Management System (FDMS), a 
government-wide, electronic docket management system, using any one of 
the following methods:
    Electronically: You may submit comments through the Federal 
eRulemaking portal at http://www.regulations.gov. Follow the online 
instructions for submitting comments.
    Mail, In Person, or Fax: Address, hand-deliver, or fax your written 
comments to the Docket Management Facility, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor, 
Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The 
Department of Transportation (DOT), which maintains and processes TSA's 
official regulatory dockets, will scan your submission and post it to 
FDMS.
    See SUPPLEMENTARY INFORMATION for formatting and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: Ellen Siegler, Assistant Chief 
Counsel, TSA-2, Transportation Security Administration, 601 South 12th 
Street, Arlington, VA 22202-4220; telephone (571) 227-2723; facsimile 
(571) 227-1379; e-mail Ellen.Siegler@dhs.gov.

SUPPLEMENTARY INFORMATION: This interim final rule is being adopted 
without prior notice and prior public comment. However, the TSA will 
still provide an opportunity for public comment on this rulemaking. 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. See ADDRESSES above for 
information on where to submit comments.
    Please identify the docket number of this interim final rule at the 
beginning of each comment. TSA encourages commenters to provide their 
names and addresses. The most helpful comments reference a specific 
portion of the

[[Page 44666]]

rulemaking, explain the reason for any recommended change, and include 
supporting data. 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 delivery, 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 
on which the docket number appears. We will stamp the receipt date on 
the postcard and mail it to you.
    TSA will file in the public docket all comments received by TSA, 
except for comments containing confidential information and sensitive 
security information (SSI).\1\ TSA will consider all comments received 
on or before the closing date for comments and will consider comments 
filed late to the extent practicable. The docket is publicly available, 
and will be available for public inspection before and after the 
comment closing date.
---------------------------------------------------------------------------

    \1\ ``Sensitive Security Information'' or ``SSI'' is information 
obtained or developed in the conduct of security activities, the 
disclosure of which would constitute an unwarranted invasion of 
privacy, reveal trade secrets or privileged or confidential 
information, or be detrimental to the security of transportation. 
The protection of SSI is governed by 49 CFR part 1520.
---------------------------------------------------------------------------

Handling of Confidential or Proprietary Information and Sensitive 
Security Information (SSI) Submitted in Public Comments

    Do not submit comments that include trade secrets, confidential 
commercial or financial information, or SSI to the public regulatory 
docket. Please submit such comments separately from other comments on 
this rulemaking. Comments containing this type of information should be 
appropriately marked as containing such information and submitted by 
mail to the address listed in the FOR FURTHER INFORMATION CONTACT 
section.
    TSA will not place such comments 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 will note in the public docket that 
TSA has received such materials from the commenter. However, if TSA 
determines that portions of these comments may be made publicly 
available, TSA may include redacted versions in the public docket. If 
TSA receives a request to examine or copy information that is not in 
the public docket, TSA will treat that request as any other request 
under the Freedom of Information Act (FOIA) (5 U.S.C. 552) and under 
DHS' FOIA regulation (published in 6 CFR part 5).

Reviewing Comments in the Docket

    Please be aware that anyone is able to search the electronic form 
of comments received into our dockets by the name of the individual 
submitting each comment (or signing each comment, in the cases of 
comments submitted on behalf of associations, businesses, labor unions, 
etc.). You may review the applicable Privacy Act Statement published in 
the Federal Register on April 11, 2000 (65 FR 19477) (available online 
at http://DocketInfo.dot.gov).
    You may review TSA's electronic public docket on the Internet at 
http://www.regulations.gov. In addition, DOT's Docket Management 
Facility provides paper copies of docket materials, equipment to 
facilitate docket review, and staff assistance to the public. To obtain 
assistance or to review comments in TSA's public docket, you may visit 
this facility from 9 a.m. to 5 p.m., Monday through Friday (excluding 
legal holidays), or you may call (202) 366-9826. This docket operations 
facility is located in the West Building Ground Floor, Room W12-140 at 
1200 New Jersey Avenue, SE., Washington, DC 20590.

Availability of Rulemaking Document

    You can get an electronic copy using the Internet by--
    (1) Searching the electronic Federal Docket Management System 
(FDMS) Web page at http://www.regulations.gov;
    (2) Accessing the Government Printing Office's Web page at http://
www.gpoaccess.gov/fr/index.html; or
    (3) Visiting TSA's Security Regulations Web page at http://
www.tsa.gov and accessing the link for ``Research Center'' at the top 
of the page.
    In addition, copies are available by writing or calling the 
individual whose contact information is listed in the FOR FURTHER 
INFORMATION CONTACT section of this interim final rule. Make sure to 
identify the docket number of this rulemaking in communications with 
TSA.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires TSA to comply with small entity requests for information 
and advice about compliance with statutes and regulations within TSA's 
jurisdiction. Any small entity that has a question regarding this 
document may contact the individual whose contact information is listed 
in FOR FURTHER INFORMATION CONTACT . Persons can obtain further 
information regarding SBREFA on the Small Business Administration's Web 
page at http://www.sba.gov/advo/laws/law_lib.html.

Good Cause for Immediate Adoption

    This action is being taken without providing a prior opportunity 
for notice and comment, and it provides for an effective date less than 
30 days after publication in the Federal Register.
    Sections 553(b) and (d) of the Administrative Procedure Act (APA) 
(5 U.S.C. 553) authorize agencies to dispense with certain notice 
procedures for rules when they find ``good cause'' to do so. Under 
section 553(b), the requirements of notice and opportunity for comment 
do not apply when the agency for good cause finds that those procedures 
are ``impracticable, unnecessary, or contrary to the public interest.'' 
Section 553(d) allows an agency, upon finding good cause, to make a 
rule effective immediately, thereby avoiding the 30-day delayed 
effective date requirement of section 553.
    TSA finds that notice and public comment to this final rule are 
impracticable, unnecessary, and contrary to the public interest. The 
provisions in this interim final rule adopt verbatim sections 1414(e) 
(6 U.S.C. 1143(e)) and 1522(e) (6 U.S.C. 1170(e)) of the Implementing 
Recommendations of the 9/11 Commission Act of 2007, Public Law 110-153 
(9/11 Act). Under sections 1414(e) and 1522(e) of the 9/11 Act, it is 
now a violation of that statute for public transportation agencies, 
railroad carriers, and their respective contractors and subcontractors 
to knowingly misrepresent to an employee or other relevant person, 
including an arbiter involved in a labor arbitration, the scope, 
application, or meaning of any rules, regulations, directives, or 
guidance issued by the DHS Secretary related to security background 
check requirements for covered individuals when conducting a security 
background check. This rule adds to the Code of Federal Regulations 
(CFR), without change, the same prohibitions as directed by the 
statute. This rule does not prohibit any conduct that is not already 
prohibited by the statute. Accordingly, it is appropriate for TSA to 
issue this regulation as an interim final rule. For the same reason, 
TSA finds

[[Page 44667]]

that there is good cause to make this rule effective immediately.

I. Summary

    This final rule codifies in the Code of Federal Regulations 
sections 1414(e) and 1522(e) of the 9/11 Act, which prohibit public 
transportation agencies, railroad carriers, and their respective 
contractors and subcontractors from knowingly misrepresenting Federal 
guidance or regulations concerning security background checks for 
covered individuals. Under this rule, entities operating mass transit 
systems, passenger rail systems, and freight rail carriers must 
understand TSA's regulations and guidance and represent these 
background checks accurately to their employees.
    This regulation will apply to regulations and guidance issued by 
TSA both before and after enactment of the 9/11 Act. At present, TSA 
has issued one rule and several guidance documents relating to security 
background checks for covered individuals. These are the Transportation 
Worker Identification Credential (TWIC) regulation (49 CFR part 1572) 
and guidance documents for freight railroad and mass transit operators. 
The TWIC rule applies, in relevant part, to land transportation workers 
who need unescorted access to secure areas of maritime facilities and 
to vessels regulated under the Maritime Transportation Security Act, 
Public Law 107-295. The railroad guidance applies to rail carriers that 
transport materials poisonous by inhalation (commonly referred to as 
Toxic Inhalation Hazard (TIH) materials). The guidance can be found at 
http://www.tsa.gov/what_we_eo/layers/trip/freight_rail_
security.shtm . The mass transportation guidance applies to entities 
that operate mass transit and rail passenger systems. This guidance can 
be found at http://www.tsa.dhs.gov/assets/pdf/guidance_employee_
background_checks.pdf.

II. 9/11 Act--False Statements Regarding Security Background Checks by 
Public Transportation Agency or Railroad Carrier

    The 9/11 Act was enacted on August 3, 2007. Sections 1414 and 1522 
of the Act address guidance issued by the Assistant Secretary of TSA 
concerning security background checks of covered individuals employed 
by public transportation agencies, railroad carriers, and their 
respective contractors and subcontractors. In particular, sections 
1414(e) and 1522(e) prohibit public transportation agencies, railroad 
carriers, and their contractors and subcontractors from knowingly 
misrepresenting the scope, application, or meaning of any rules, 
directives, or guidance concerning background checks to employees, 
arbiters in an arbitration proceeding, or any other relevant persons.
    Sections 1414(e) and 1522(e) expressed this concern about 
misrepresentation in nearly-identical language and directed TSA to 
issue a rule addressing that concern within one year of the statute's 
enactment. Section 1414(e), addressing public transportation, provides:

    A public transportation agency or a contractor or subcontractor 
of a public transportation agency may not knowingly misrepresent to 
an employee or other relevant person, including an arbiter involved 
in a labor arbitration, the scope, application, or meaning of any 
rules, regulations, directives, or guidance issued by the Secretary 
related to security background check requirements for covered 
individuals when conducting a security background check. Not later 
than 1 year after the date of enactment of this Act, the Secretary 
shall issue a regulation that prohibits a public transportation 
agency or a contractor or subcontractor of a public transportation 
agency from knowingly misrepresenting to an employee or other 
relevant person, including an arbiter involved in a labor 
arbitration, the scope, application, or meaning of any rules, 
regulations, directives, or guidance issued by the Secretary related 
to security background check requirements for covered individuals 
when conducting a security background check.

    Similarly, section 1522(e) provides:

    A railroad carrier or a contractor or subcontractor of a 
railroad carrier may not knowingly misrepresent to an employee or 
other relevant person, including an arbiter involved in a labor 
arbitration, the scope, application, or meaning of any rules, 
regulations, directives, or guidance issued by the Secretary related 
to security background check requirements for covered individuals 
when conducting a security background check. Not later than 1 year 
after the date of enactment of this Act, the Secretary shall issue a 
regulation that prohibits a railroad carrier or a contractor or 
subcontractor of a railroad carrier from knowingly misrepresenting 
to an employee or other relevant person, including an arbiter 
involved in a labor arbitration, the scope, application, or meaning 
of any rules, regulations, directives, or guidance issued by the 
Secretary related to security background check requirements for 
covered individuals when conducting a security background check.

    This interim final rule codifies the language of sections 1414(e) 
and 1522(e) of the 9/11 Act into 49 CFR part 1570. It also codifies the 
definitions of ``covered individual'' as contained in sections 1414(a) 
and 1515(a), ``public transportation agency'' in section 1402(5), 
``railroad'' and ``railroad carrier'' in sections 1501(7) and (8), 
respectively, and ``security background check'' in sections 1414(a) and 
1522(a). The regulatory text of this rule is essentially identical to 
the statutory provisions.

III. TSA's Background Check Initiatives

    To date, TSA has issued one regulation and several guidance 
documents that relate to background checks in the public transportation 
and railroad sectors. In the future, DHS and TSA may undertake other 
initiatives. Today's rulemaking prohibits public transportation 
agencies, railroad carriers, and their respective contractors and 
subcontractors from knowingly misrepresenting to an employee or other 
relevant person, including an arbiter involved in a labor arbitration, 
the scope, application, or meaning of any rules, regulations, 
directives, or guidance issued by the Secretary of the Department of 
Homeland Security related to security background check requirements for 
covered individuals when conducting a security background check.
    Prior to the enactment of the 9/11 Act, TSA issued regulations 
requiring credentialing and security threat assessments for certain 
maritime and land transportation workers. Specifically, under the TWIC 
regulations, individuals who require unescorted access to secure areas 
of maritime ports and vessels must undergo security threat assessments 
and must obtain biometric credentials to be used in access control 
systems installed by regulated facilities and vessels.\2\ TSA conducts 
a security threat assessment, including a criminal history records 
check against a specified list of disqualifying criminal offenses, 
before issuing a TWIC. Some public transportation and railroad carrier 
employees may require TWICs under the TSA TWIC rule if they require 
unescorted access to secure areas of regulated vessels or maritime 
facilities.
---------------------------------------------------------------------------

    \2\ 49 CFR part 1572.
---------------------------------------------------------------------------

    Also prior to the enactment of the 9/11 Act, TSA issued guidance 
recommending that entities operating mass transit and passenger rail 
systems, and railroad carriers that transport TIH materials, conduct 
background checks on key employees. In 2006 DHS and DOT recommended 
that TIH railroad carriers establish procedures for background checks 
for contractor employees with unmonitored access to

[[Page 44668]]

company-designated critical infrastructure.\3\
---------------------------------------------------------------------------

    \3\ The TIH railroad guidance can be found at: http://
www.tsa.gov/what_we_do/layers/trip/freight_rail_security.shtm.
---------------------------------------------------------------------------

    On February 12, 2007, DHS and DOT issued additional guidance to TIH 
railroad carriers concerning the recommended scope and procedures for 
voluntarily conducted background checks. DHS and DOT noted that many 
TIH railroad carriers use criminal background checks to assess the 
suitability of their employees. DHS and DOT recommended that, to the 
extent that TIH railroad carriers choose to conduct criminal background 
checks for individuals with unmonitored access to company-designated 
critical infrastructure, they should consider using the Federally-
established list of disqualifying crimes applicable to hazmat drivers 
and port transportation workers contained in 49 CFR 1572.103. DHS and 
DOT further recommended that the railroad industry should consider 
establishing a vigorous internal redress process for adversely affected 
job applicants and personnel, including an appeal and waiver process 
similar to the processes established for holders of commercial driver's 
licenses who apply for hazardous materials endorsements \4\ and for 
port transportation workers.\5\
---------------------------------------------------------------------------

    \4\ In accordance with 49 U.S.C. 5103a, holders of commercial 
driver's licenses who apply for hazardous materials endorsements 
must undergo security threat assessments under 49 CFR part 1572. 
Procedures for waivers and appeals are found at 49 CFR part 1515.
    \5\ 49 CFR 1572.103.
---------------------------------------------------------------------------

    In 2006, TSA and the Federal Transit Administration (FTA) jointly 
issued guidance recommending a number of practices to improve the 
security of their systems.\6\ In this guidance, TSA and FTA recommended 
that these systems conduct background investigations, such as criminal 
history and motor vehicle records checks, on all new frontline 
operators and maintenance employees and on those employees and 
contractors with access to sensitive security information and security 
critical facilities and systems, such as tunnels, surveillance, 
monitoring, and intrusion detection systems. On February 28, 2008, 
consistent with the February 12, 2007 guidance to TIH freight railroad 
carriers, TSA and FTA issued additional guidance in which they 
recognized that some entities operating mass transit and passenger rail 
systems were using criminal background checks to assess the suitability 
of their employees. TSA and FTA suggested that these entities consider 
using the Federally-established list of disqualifying crimes applicable 
to hazmat drivers and port transportation workers found in 49 CFR 
1572.103. TSA and FTA further suggested that entities operating mass 
transit and passenger rail systems also consider using an appeal and 
waiver process similar to the process established for hazardous 
material drivers and port transportation workers found in 49 CFR part 
1515.
---------------------------------------------------------------------------

    \6\ The transit guidelines can be found at on the internet at: 
http://transit-safety.volpe.dot.gov/Security/SecurityInitiatives/
ActionItems/actionlist.asp#14.
---------------------------------------------------------------------------

    Public transportation agencies, railroad carriers, and their 
contractors, may not misrepresent the recommendations in any of these 
TSA guidance documents to their employees.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501. et seq.) 
requires that a Federal agency consider the impact of paperwork and 
other information collection burdens imposed on the public and, under 
the provisions of PRA section 3507(d), obtain approval from the Office 
of Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. TSA has determined 
that there are no current or new information collection requirements 
associated with this rule.

V. Economic Impact Analyses

Regulatory Evaluation Summary

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order (E.O.) 12866, Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), directs each Federal agency to 
propose or adopt a regulation only upon a reasoned determination that 
the benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996) requires agencies to analyze the economic impact of regulatory 
changes on small entities. Third, the Trade Agreements Act (19 U.S.C. 
2531-2533) prohibits agencies from setting standards that create 
unnecessary obstacles to the foreign commerce of the United States. 
Fourth, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation). Because this rule 
does not add any requirements to those in the statute, the impact of 
this rule is negligible. Thus, TSA has not performed a cost/benefit 
analysis.

Executive Order 12866 Assessment

    E.O. 12866, ``Regulatory Planning and Review'' (58 FR 51735, 
October 4, 1993) provides for making determinations as to whether a 
regulatory action is ``significant'' and therefore subject to OMB 
review and the requirements of the Order. Executive Order 12866 
classifies a rule as significant if it meets any one of a number of 
specified conditions, including economic significance, which is defined 
as having an annual impact on the economy of $100 million. A regulation 
is also considered a significant regulatory action if it raises novel 
legal or policy issues.
    This regulation is not significant under E.O. 12866. TSA has 
concluded, however, that the costs of the rule will be minimal for the 
reasons presented below. This rule codifies the language of sections 
1414(e) and 1522(e) of the 9/11 Act prohibiting knowingly 
misrepresenting TSA's background check requirements or recommendations 
and incorporates it into 49 CFR part 1570. The regulatory text is 
identical to the statutory provisions.
    This regulation should have no economic impact as it codifies the 
requirement that prohibits public transportation agencies, railroad 
carriers and their contractor and subcontractors from knowingly 
misrepresenting DHS guidance, directives, or regulations concerning 
security background checks for covered individuals. Stated simply, it 
codifies the statutory mandate that these entities may not knowingly 
make false statements regarding DHS security background check 
requirements
    We expect affected entities to inform their employees and 
contractors about their obligations via email or letter and we believe 
that it would involve minimal cost.
    This rule will benefit individuals employed by public 
transportation agencies, railroad carriers, and their contractor and 
subcontractors. These individuals will be given correct information 
about DHS background check guidance or requirements.

Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), requires agencies to perform a review to determine 
whether a proposed or final rule will have a significant

[[Page 44669]]

economic impact on a substantial number of small entities when the 
Administrative Procedure Act (APA) requires notice and comment 
rulemaking. TSA has not assessed whether this rule will have a 
significant economic impact on a substantial number of small entities, 
as defined in the RFA. When an agency publishes a rulemaking without 
prior notice and an opportunity for comment, the RFA analysis 
requirements do not apply. TSA is adopting this interim final rule 
without prior notice and opportunity for public comment. Therefore, no 
RFA analysis is provided.

International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
establishing any standards or engaging in related activities that 
create unnecessary obstacles to the foreign commerce of the United 
States. Legitimate domestic objectives, such as safety, are not 
considered unnecessary obstacles. The statute also requires 
consideration of international standards and, where appropriate, that 
they be the basis for U.S. standards. TSA has assessed the potential 
effect of this rulemaking and has determined that it will not create 
any unnecessary obstacles to foreign commerce.

Unfunded Mandates Assessment

    The Unfunded Mandates Reform Act of 1995 is intended, among other 
things, to curb the practice of imposing unfunded Federal mandates on 
State, local, and tribal governments. Title II of the Act requires each 
Federal agency to prepare a written statement assessing the effects of 
any Federal mandate in a proposed or final agency rule that may result 
in a $100 million or more expenditure (adjusted annually for inflation) 
in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector; such a mandate is deemed to be a 
``significant regulatory action.''
    This rulemaking does not contain such a mandate. The requirements 
of Title II of the Act, therefore, do not apply and TSA has not 
prepared a statement under the Act.

VI. Executive Order 13132, Federalism

    TSA has analyzed this final rule under the principles and criteria 
of E.O. 13132, Federalism. We have determined that this action will not 
have a substantial direct effect on the States, or the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
and, therefore, have determined that this action does not have 
federalism implications.

VII. Environmental Analysis

    TSA has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

VIII. Energy Impact Analysis

    The energy impact of the action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, 
as amended (42 U.S.C. 6362). We have determined that this rulemaking is 
not a major regulatory action under the provisions of the EPCA.

List of Subjects in 49 CFR Part 1570

    Appeals, Commercial drivers license, Criminal history background 
checks, Explosives, Facilities, Hazardous materials, Incorporation by 
reference, Maritime security, Motor carriers, Motor vehicle carriers, 
Ports, Seamen, Security measures, Security threat assessment, Vessels, 
Waivers.

The Amendments

0
For the reasons set forth in the preamble, the Transportation Security 
Administration amends Chapter XII of Title 49 of the Code of Federal 
Regulations, as follows:

PART 1570--GENERAL RULES

0
1. The authority citation for part 1570 is revised to read as follows:

    Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and 
46105; 18 U.S.C. 842, 845; 6 U.S.C. 469; Pub. L. 110-53 secs. 1414, 
1522.


0
2. Add Sec.  1570.13 to read as follows:


Sec.  1570.13  False Statements Regarding Security Background Checks by 
Public Transportation Agency or Railroad Carrier.

    (a) Scope. This section implements sections 1414(e) (6 U.S.C. 1143) 
and 1522(e) (6 U.S.C. 1170) of the ``Implementing Recommendations of 
the 9/11 Commission Act of 2007,'' Pub. L. 110-53.
    (b) Definitions.
    Covered individual means an employee of a public transportation 
agency or a contractor or subcontractor of a public transportation 
agency or an employee of a railroad carrier or a contractor or 
subcontractor of a railroad carrier.
    Public transportation agency means a publicly-owned operator of 
public transportation eligible to receive Federal assistance under 
chapter 53 of title 49, United States Code.
    Railroad has the meaning that term has in section 20102 of title 
49, United States Code.
    Railroad carrier has the meaning that term has in section 20102 of 
title 49, United States Code.
    Security background check means reviewing the following for the 
purpose of identifying individuals who may pose a threat to 
transportation security, national security, or of terrorism:
    (i) Relevant criminal history databases;
    (ii) In the case of an alien (as defined in sec. 101 of the 
Immigration and Nationality Act (8 U.S.C. 1101(a)(3)), the relevant 
databases to determine the status of the alien under the immigration 
laws of the United States; and
    (iii) Other relevant information or databases, as determined by the 
Secretary of Homeland Security.
    (c) Prohibitions. (1) A public transportation agency or a 
contractor or subcontractor of a public transportation agency may not 
knowingly misrepresent to an employee or other relevant person, 
including an arbiter involved in a labor arbitration, the scope, 
application, or meaning of any rules, regulations, directives, or 
guidance issued by the Secretary of Homeland Security related to 
security background check requirements for covered individuals when 
conducting a security background check.
    (2) A railroad carrier or a contractor or subcontractor of a 
railroad carrier may not knowingly misrepresent to an employee or other 
relevant person, including an arbiter involved in a labor arbitration, 
the scope, application, or meaning of any rules, regulations, 
directives, or guidance issued by the Secretary of Homeland Security 
related to security background check requirements for covered 
individuals when conducting a security background check.

    Issued in Arlington, Virginia, on July 25, 2008.
Gale Rossides,
Deputy Administrator.
[FR Doc. E8-17515 Filed 7-30-08; 8:45 am]
BILLING CODE 9110-05-P