E9-15080. False Statements Regarding Security Background Checks

AGENCY:

Transportation Security Administration, DHS.

ACTION:

Final rule.

SUMMARY:

On July 31, 2008, TSA published an interim rule prohibiting 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. This final rule follows publication of the July 31, 2008 interim rule, and makes no changes at this final rule stage.

DATES:

Effective Date: June 26, 2009.

FOR FURTHER INFORMATION CONTACT:

Ellen Siegler, Assistant Chief Counsel, TSA-2, Transportation Security Administration, 601 South 12th Street, Arlington, VA 20598-6002; telephone [phone]; facsimile [phone]; e-mail [e-mail].

ADDRESSES:

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 in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking.

SUPPLEMENTARY INFORMATION:

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with small entity requests for information and advice about compliance with statutes and regulations within TSA's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in the FOR FURTHER INFORMATION CONTACT section. 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 Effective Date

This rule will be effective upon publication in the Federal Register. Section 553(d) of the Administrative Procedure Act 5 U.S.C. 553, allows an agency, upon finding good cause, to make a rule effective immediately. There is good cause for making this final rule effective immediately. An interim final rule (IFR), published on July 31, 2008, is already in effect. There is no need to provide advance notice that this final rule will become effective because this final rule is substantively identical to the IFR; it does not prohibit any conduct not already prohibited by the IFR.

I. Summary

On July 31, 2008, TSA issued an IFR codifying in the Code of Federal Regulations (CFR) sections 1414(e) and 1522(e) of the 9/11 Act, which prohibits 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. 73 FR 44665. Under 49 CFR 1570.13, as added by the IFR, 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.

The public comment period on the IFR expired on September 2, 2008. TSA received no comments. For the reasons set forth in the IFR, TSA is continuing without change the provisions of 49 CFR 1570.13.

II. 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.

III. 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 and in the July 31, 2008, IFR, TSA has not performed a cost/benefit analysis.

Executive Order 12866 Assessment

Executive Order 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. This final regulation will have no economic impact because the regulation makes no changes to 49 CFR 1570.13.

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 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. This rulemaking is a final rule that follows an IFR that TSA issued on July 31, 2008. 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.

IV. 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.

V. 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.

VI. 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 interim rule for part 1570 of Title 49 of the Code of Federal Regulations, adding § 1570.13, published July 31, 2008, at 73 FR 44665, is adopted as final, without change.

Issued in Arlington, VA, on June 22, 2009.

Gale D. Rossides,

Acting Administrator.