WASHINGTON, D.C. — The Transportation Security Administration (TSA) has issued an interim final rule, effective immediately, codifying a section of Public Law 110–53, the Implementing Recommendations of the 9/11 Commission Act of 2007 (“the 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.
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. They also may not knowingly misrepresent to any 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.
This regulation will apply to regulations and guidance issued by TSA both before and after enactment of the Act, and applies to both future security programs and the current Transportation Worker Identification Credential (TWIC) program and guidance documents for freight railroad and mass transit operators issued by TSA.
On February 12, 2007, DHS and DOT issued guidance to TIH (toxic by inhalation) railroad carriers concerning the recommended scope and procedures for voluntarily conducted background checks. DHS and DOT recommended that, to the extent 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.
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 and for port transportation workers. This recommendation also was mandated by the Act.
The interim final rule takes effect immediately, and is being adopted without prior notice and prior public comment because the TSA finds that notice and public comment to this final rule are impracticable, unnecessary, and contrary to the public interest. However, the rule is open for public comment until September 2, 2008, and the BLET continues to study the issue.