Monday, June 29, 2009

TSA Finalizes Background Check Regulation

In Friday’s Federal Register the Transportation Security Administration published a final rule implementing sections 1414(e) and 1522(e) of the 9/11 Act prohibiting 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. The legislature included these sections in the 9/11 Act because they were concerned that employers would use the background check requirements as a cover for personnel actions that would not be permitted under normal labor relations laws. In July of last year TSA published an interim final rule (IFR) adding §1570.13 to 49 CFR (73 FR 44665). With the publication of that IFR TSA requested public comments. No comments were filed by the time the comment period closed September 2nd, 2008. With the lack of public comments, TSA has decided to publish this final rule making permanent the provisions of 49 CFR §1570.13. This final regulation is effective as of June 26th, 2008 when it was published in the Federal Register. Since there is effectively no change being made to the rules, TSA does not need to give advance notice of the effective date for this final rule. Similar wording to §1414(e) and §1522(e) is being included in the Chemical Facility Anti-Terrorism Act of 2009 (HR 2868) because specific background check guidance is provided in that legislation. One would expect that DHS would include wording similar to §1570.13 in any revisions required to 6 CFR part 27 if HR 2868 were to pass this year.

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