Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations 44665 

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. 

* * * * * 

Section III. Non-Section 503 Forfeitures That 

Are Affected by the Downward Adjustment 

Factors 

* * * * * 

Violation Statutory amount ($) 

Sec. 202(c) Common Carrier Discrimination .................................................................................................................. 9,600, 530/day. 

Sec. 203(e) Common Carrier Tariffs .............................................................................................................................. 9,600, 530/day. 

Sec. 205(b) Common Carrier Prescriptions ................................................................................................................... 18,200. 

Sec. 214(d) Common Carrier Line Extensions .............................................................................................................. 1,320/day. 

Sec. 219(b) Common Carrier Reports ........................................................................................................................... 1,320. 

Sec. 220(d) Common Carrier Records & Accounts ....................................................................................................... 9,600/day. 

Sec. 223(b) Dial-a-Porn .................................................................................................................................................. 75,000/day. 

Sec. 364(a) Forfeitures (Ships) ...................................................................................................................................... 7,500 (owner). 

Sec. 364(b) Forfeitures (Ships) ...................................................................................................................................... 1,100 (vessel master). 

Sec. 386(a) Forfeitures (Ships) ...................................................................................................................................... 7,500/day (owner). 

Sec. 386(b) Forfeitures (Ships) ...................................................................................................................................... 1,100 (vessel master). 

Sec. 634 Cable EEO ...................................................................................................................................................... 650/day. 

(5) * * * 

(iii) * * * 

U.S. code citation 

Maximum penalty after DCIA 

adjustment ($) 

47 U.S.C. 202(c) ............... 9,600 

530 

47 U.S.C. 203(e) .............. 9,600 

530 

47 U.S.C. 205(b) .............. 18,200 

47 U.S.C. 214(d) .............. 1,320 

47 U.S.C. 219(b) .............. 1,320 

47 U.S.C. 220(d) .............. 9,600 

47 U.S.C. 223(b) .............. 75,000 

47 U.S.C. 362(a) .............. 7,500 

47 U.S.C. 362(b) .............. 1,100 

47 U.S.C. 386(a) .............. 7,500 

47 U.S.C. 386(b) .............. 1,100 

47 U.S.C. 503(b)(2)(A) ..... 37,500 

375,000 

47 U.S.C. 503(b)(2)(B) ..... 150,000 

1,500,000 

47 U.S.C. 503(b)(2)(C) ..... 325,000 

3,000,000 

47 U.S.C. 503(b)(2)(D) ..... 16,000 

112,500 

47 U.S.C. 507(a) .............. 750 

47 U.S.C. 507(b) .............. 110 

47 U.S.C. 554 ................... 650 

[FR Doc. E8–17254 Filed 7–30–08; 8:45 am] 

BILLING CODE 6712–01–P 

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. 

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 


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44666 Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations 

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. 

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. 

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 


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2 49 CFR part 1572. 

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_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 

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. 

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 


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3The 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. 

6The transit guidelines can be found at on the 

internet at: http://transit-safety.volpe.dot.gov/ 

Security/SecurityInitiatives/ActionItems/ 

actionlist.asp#14. 

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 

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 

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 


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Federal Register / Vol. 73, No. 148 / Thursday, July 31, 2008 / Rules and Regulations 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 

■ 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 

■ 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. 

■ 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 

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 


yshivers on PROD1PC62 with RULES