[Federal Register: August 7, 2006 (Volume 71, Number 151)]
[Rules and Regulations]
[Page 44873-44881]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07au06-11]
[[Page 44873]]
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Part VI
Department of Homeland Security
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Transportation Security Administration
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49 CFR Part 1572
Drivers Licensed by Canada or Mexico Transporting Hazardous Materials
to and Within the United States; Interim Rule
[[Page 44874]]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1572
[Docket No. TSA-2006-25541; Amendment No. 1572-6]
RIN 1652-AA50
Drivers Licensed by Canada or Mexico Transporting Hazardous
Materials to and Within the United States
AGENCY: Transportation Security Administration, DHS.
ACTION: Interim rule; request for comments.
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SUMMARY: This interim rule announces that a commercial motor vehicle
driver licensed in Canada or Mexico who holds a Free and Secure Trade
(FAST) program card may use that card as an acceptable credential to
transport placarded amounts of hazardous materials or any quantity of a
material listed as a select agent or toxin in 42 CFR part 73 within the
United States. The Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) requires
that, as of August 10, 2006, commercial motor vehicle drivers licensed
in Canada or Mexico who transport hazardous materials in the United
States must undergo a background check similar to the one required of
U.S.-licensed operators with a hazardous materials endorsement (HME) on
a commercial drivers license (CDL). The Transportation Security
Administration (TSA) has determined that the background check required
to obtain a credential under the FAST program meets the background
check requirements of SAFETEA-LU. TSA invites comment on any other
existing background check programs that satisfy the requirements under
SAFETEA-LU. This interim rule also removes pre-existing procedures for
commercial drivers who transport explosives into the United States from
Canada, and replaces it with a revised provision that applies to
commercial drivers who transport explosives, as well as other hazardous
materials, into and within the United States.
DATES: Effective Date: This rule is effective on August 10, 2006.
Comment Date: Comments must be received by October 6, 2006.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, using any one of the following methods:
Comments Filed Electronically: You may submit comments through the
docket web site at http://dms.dot.gov You also may submit comments through the Federal eRulemaking portal at http://www.regulations.gov.
Comments Submitted by Mail, Fax, or In Person: Address or deliver
your written, signed comments to the Docket Management System, U.S.
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW.,
Washington, DC 20590-0001; Fax: 202-493-2251.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Stephen Sadler, Director, Maritime and
Surface Credentialing, Office of Transportation Threat Assessment and
Credentialing, TSA-19, Transportation Security Administration, 601
South 12th Street, Arlington, VA 22202-4220; telephone (571) 227-2492;
facsimile (703) 603-0409; e-mail stephen.sadler@dhs.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
This interim rule is being adopted without prior notice and prior
public comment. However, to the maximum extent possible, operating
administrations within DHS will provide an opportunity for public
comment on regulations issued without prior notice. Accordingly, 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 adopting the proposals in this document. See
ADDRESSES above for information on where to submit comments.
With each comment, please include your name and address, identify
the docket number at the beginning of your comments, and give the
reason for each comment. The most helpful comments reference a specific
portion of the 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 two
copies, in an unbound format, no larger than 8.5 by 11 inches, suitable
for copying and electronic filing.
If you want 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 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 available for
public inspection before and after the comment closing date.
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\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.
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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
the rulemaking. Comments containing this type of information should be
appropriately marked as containing such information and submitted by
mail to the address listed in FOR FURTHER INFORMATION CONTACT section.
Upon receipt of such comments, TSA will not place the comments in
the public docket and will handle them in accordance with applicable
safeguards and restrictions on access. TSA will hold them in a separate
file to which the public does not have access, and place a note in the
public docket that TSA has received such materials from the commenter.
If TSA receives a request to examine or copy this information, TSA will
treat it as any other request under the Freedom of Information Act
(FOIA) (5 U.S.C. 552) and the Department of Homeland Security's (DHS'')
FOIA regulation found in 6 CFR part 5.
Reviewing Comments in the Docket
Please be aware that anyone is able to search the electronic form
of all comments received into any of our dockets by the name of the
individual submitting the comment (or signing the comment, if submitted
on behalf of an association, business, labor union, etc.). You may
review the applicable Privacy Act Statement published in the Federal
Register on April 11, 2000 (65 FR
[[Page 44875]]
19477), or you may visit http://dms.dot.gov.
You may review the comments in the public docket by visiting the
Dockets Office between 9 a.m. and 5 p.m., Monday through Friday, except
Federal holidays. The Dockets Office is located on the plaza level of
the Nassif Building at the Department of Transportation address,
previously provided under ADDRESSES. Also, you may review public
dockets on the Internet at http://dms.dot.gov.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the Department of Transportation's electronic Docket
Management System (DMS) Web page (http://dms.dot.gov/search); (2) Accessing the Government Printing Office's Web page at http://
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.
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 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
.
Abbreviations and Terms Used in This Document
CBP--Bureau of Customs and Border Protection
CDL--Commercial drivers license
CHRC--Criminal history records check
DHS--Department of Homeland Security
FAST--Free and Secure Trade program
HME--Hazardous materials endorsement
Hazardous Materials (hazmat)--Materials transported in quantities
requiring placarding under regulations issued by the U.S. Department of
Transportation or any quantity of a material listed as a select agent
or toxin in 42 CFR part 73
SAFETEA-LU--The Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users
TSA--Transportation Security Administration
TWIC--Transportation Worker Identification Credential
I. Background
The Safe, Accountable, Flexible, Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) was enacted on August 10, 2005.\2\
Section 7105(h) of SAFETEA-LU requires that a commercial motor vehicle
driver licensed by Canada or Mexico shall not operate a commercial
motor vehicle transporting hazardous materials in the United States
until the driver has undergone a background records check similar to
the one required of commercial motor vehicle operators licensed in the
United States to transport hazardous materials. This provision was to
become effective six months after the date of enactment. However, the
statute gave TSA the discretion to extend the implementation date an
additional six months if necessary. On February 10, 2006, TSA published
a notice in the Federal Register announcing that TSA had extended the
deadline until August 10, 2006.\3\ Accordingly, effective August 10,
2006, commercial motor vehicle operators licensed in Canada or Mexico
who intend to transport hazardous materials in the United States must
be able to demonstrate that they have undergone a background check
similar to the background check required of U.S.-licensed drivers
transporting hazardous materials.
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\2\ Pub. L. 109-59, August 10, 2005, sec. 7105, codified at 49
U.S.C. 5103a(h).
\3\ 71 FR 7057 (February 10, 2006).
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II. Threat Assessment Standards for Transportation of Hazardous
Materials
The current background check requirement for U.S.-licensed drivers
of hazardous materials is found in TSA's hazardous materials rule
(hazmat rule), which requires a security threat assessment for U.S.
commercial drivers who apply for a new, renewal, or transfer of a
hazardous materials endorsement (HME) on a commercial drivers license
(CDL).\4\ The hazmat rule applies to commercial drivers who transport
hazardous materials in quantities requiring placarding under
regulations issued by the U.S. Department of Transportation (DOT)\5\ or
who transport any quantity of a material listed as a select agent or
toxin in 42 CFR part 73.\6\ Persons who transport hazardous materials
not requiring placarding and who do not transport any quantity of a
material listed as a select agent or toxin in 42 CFR part 73 are not
required to have an HME or a TSA threat assessment.
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\4\ 69 FR 68720 (November 24, 2004); now codified in 49 CFR
parts 1570, 1572.
\5\ 49 CFR part 172.
\6\ 49 CFR 383.5, 383.93(b)(4).
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U.S.-licensed drivers who apply for, transfer, or renew a CDL with
an HME must undergo fingerprint-based criminal history record checks
(CHRC) and name-based checks against relevant immigration,
intelligence, and international databases. An applicant is disqualified
if he or she does not meet certain citizenship and immigration
standards, is wanted or under indictment for certain felonies, has a
conviction in military or civilian court for certain felonies, has been
adjudicated as lacking mental capacity or involuntarily committed to a
mental institution, or is determined to pose a security threat based on
a review of pertinent databases.\7\ TSA's hazmat rule also includes
appeal and waiver procedures.
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\7\ 49 CFR 1572.5(c).
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The hazmat rule, however, only applies to drivers who receive a CDL
with an HME issued by a state of the United States or the District of
Columbia. Therefore, under the hazmat rule, drivers licensed in Canada
or Mexico who transport hazardous materials in the U.S. do not undergo
the background records check that is required of U.S. licensed hazmat
drivers.
TSA previously published a rule concerning the transportation of
explosives from Canada (explosives rule) into the United States by
drivers who are not U.S. citizens or lawful permanent residents.\8\ In
pertinent part, the rule, which was codified at 49 U.S.C. 1572.201 and
is now superseded by this interim rule, provided that shipments of
explosives entering the United States from Canada via commercial motor
vehicles must be transported by U.S. citizens, lawful permanent
residents, or a ``known carrier, known driver, and known offeror'' as
determined by the governments of Canada and the United States. To
implement this rule for drivers licensed in Canada, Canada conducts a
check of commercial drivers licensed in Canada and authorized to
transport explosives, and provides a list of the approved drivers to
TSA. TSA conducts periodic name-based checks of the individuals on the
list to confirm their continued eligibility to enter the
[[Page 44876]]
United States with explosives shipments and provides the list of
approved drivers to the Bureau of Customs and Border Protection
(CBP).\9\ Prior to the effective date of this interim rule, all
operators transporting explosives into the United States were required
to appear on the list to be granted entry into the United States.
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\8\ 68 FR 6083 (February 6, 2003); formerly codified in 49 CFR
1572.201.
\9\ Formerly 49 CFR 1572.201.
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The threat assessment required in the explosives rule that is being
replaced by this rule, however, was not as extensive as the one
required of U.S.-licensed drivers under the hazmat rule. Further, the
explosives rule applied only to the transport of explosives, a subset
of the hazardous materials covered by the hazmat rule, and the
explosives rule did not apply to drivers entering the United States
from Mexico. Accordingly, the explosives rule does not provide a
process similar to the one required of U.S. commercial motor vehicle
operators who obtain an HME, and thus does not satisfy the requirements
of SAFETEA-LU.
III. Bureau of Customs and Border Protection FAST Card
TSA has identified a program currently in place that is conducted
by the Bureau of Customs and Border Protection (CBP), an agency within
the Department of Homeland Security (DHS), which requires a background
records check that satisfies the vetting standard requirements as set
forth under SAFETEA-LU for commercial vehicle operators licensed to
operate in Mexico or Canada.\10\ FAST is a voluntary program for those
who seek expedited processing at U.S. borders and CBP exercises full
discretion in determining whether a person may be authorized to
participate (or continue to participate) in this program.
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\10\ 49 U.S.C. 5103a(h)(1).
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The FAST program is a cooperative effort between CBP and the
governments of Canada and Mexico to coordinate processes for the
clearance of commercial shipments at the border. Eligibility for the
FAST program requires participants (carriers, commercial drivers,
importers, and southern border manufacturers) to submit an application
and, if applicable, a security profile.\11\ The FAST program allows
known, low-risk participants to receive expedited border processing.
Under the FAST Commercial Driver Program, commercial truck drivers
licensed in Canada, Mexico, or the United States may volunteer to
undergo a background records check and, if they complete it
satisfactorily, may receive their individual FAST card and expedited
entrance privileges for commercial purposes at the northern and
southern borders, subject to other requirements.
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\11\ Membership in the Customs-Trade Partnership Against
Terrorism (C-TPAT), another CBP voluntary trade security program, is
also required for some applicants. A security profile is required of
C-TPAT applicants.
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Under the FAST Commercial Driver program, CBP verifies and
validates applicant information, conducts a personal interview with
each applicant, examines driver original identification and
documentation, obtains fingerprints and a photograph, and conducts
fingerprint-based criminal history records checks and name-based checks
of pertinent intelligence and immigration databases. In addition, in
accordance with the cooperative effort, Canada conducts a similar
background records check of applicants seeking FAST privileges on the
northern border. Upon acceptance into the program, the driver is issued
a FAST card that is valid for five years, subject to CBP suspension or
revocation for violation of membership rules.\12\ CBP also periodically
checks the backgrounds of those who hold FAST cards against relevant
databases to confirm ongoing eligibility. The background check
conducted for FAST commercial driver applicants both meets the vetting
standard set forth under SAFETEA-LU and is widely available to drivers
licensed in Canada or Mexico.
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\12\ FAST membership on the northern border is likewise subject
to suspension by the Canadian government.
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TSA has concluded that the FAST background records check for
commercial driver applicants is similar to that required for domestic
HME drivers. Accordingly, TSA concludes that acceptance into the FAST
Commercial Driver program is sufficient evidence that the holder of the
card has undergone a threat assessment similar to that required for
domestic HME holders.
TSA's conclusion that the background checks for the FAST program
and for the HME program are similar is based on the general comparison
summarized briefly in the table below. Both include thorough criminal
history records checks, immigration status checks, and intelligence-
based checks. Both request a substantial quantity of information from
applicants to provide assurance of the individual's identity. As a
result, TSA has determined that the FAST background check is similar to
the one required of U.S.-licensed HME drivers.
Comparison of HME and Fast Background Checks
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TSA assessment, HME FAST card \13\
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Application criteria:
Full legal name (and Y................... Y
aliases).
Current residence....... Y................... Y
Mail address (if Y................... Y
different from
residence).
Previous residence...... Y................... Y (5 yrs.).
Date of birth........... Y................... Y
Other personal Y................... Y
identification
information.
Immigration status...... Y................... Y
Alien registration Y................... Y
number.
CDL number.............. Y................... DLN or CDL.
Security threat assessment
procedures:
Intelligence-based Y................... Y
checks.
Fingerprint collected... Y................... Y
Criminal records check.. Y................... Y
Application fee......... Y................... Y
Personal interview...... N................... Y
Validity period......... 5 years............. 5 years.
[[Page 44877]]
Disqualifying offenses...... Temporary and Consideration of
permanently crimes including,
disqualifying but not limited, to
crimes are listed those listed in 49
in 49 CFR 1572. CFR 1572, as well
Conviction of any as customs and
listed crime immigration
disqualifies the offenses.
individual unless Commission of some
he or she obtains a offenses does not
waiver. lead to automatic
ineligibility;
considerations
include date of
offense,
seriousness, and
other factors.
Other eligibility criteria.. U.S. citizenship or Citizen or permanent
lawful status. resident of U.S.,
Mexico, or Canada.
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For drivers who are denied participation in the FAST program, TSA
is actively exploring other options for satisfying the SAFETEA-LU
requirement. To date, TSA has not identified, and the Canadian and
Mexican governments have not shown, another credential or process that
demonstrates the holder has undergone a threat assessment similar to
the one required of domestic HME holders. As a result of the SAFETEA-LU
requirement, until TSA determines that another background check is
similar to that prescribed in 49 CFR Sec. 1572.5, commercial motor
vehicle drivers licensed by Canada or Mexico who wish to transport
hazardous materials into or within the United States will have to apply
to the FAST Commercial Driver Program, successfully complete the FAST
background records, and pay certain associated enrollment fees to
transport hazardous materials in the United States.
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\13\ The criteria outlined in this FAST card column are
representative of the factors considered by CBP in reviewing
applications for FAST participation. This is not a complete list of
factors that may be considered by CBP and does not represent the
factors that may be considered by the Canadian government for
persons applying for FAST on the northern border. Persons applying
for FAST on the northern border must be approved for participation
by both CBP and the Canadian government.
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It is important to remember that this IFR does not require drivers
licensed in Canada and Mexico to obtain FAST cards; participation in
FAST is voluntary. Rather, it provides an exception from the
prohibition that SAFETEA-LU would impose otherwise, providing drivers
the option of taking advantage of this opportunity to qualify to
transport hazardous materials in the U.S. if they conclude that it is
beneficial.
To apply for FAST, commercial drivers must fill out an application
form. The application is available to review and download http://www.cbp.gov/xp/cgov/import/commercial_enforcement/ctpat/fast/.
There
are separate forms for northern and southern border participation.
Northern border (Canada-based) applicants must be approved by CBP,
Citizenship and Immigration Canada (CIC), and Canada Border Services
Agency (CBSA). The United States and Canada honor northern border FAST
cards. For southern border (Mexico-based) applicants, the vetting
process is completed exclusively by CBP. Northern and southern border
FAST driver cards are equally valid at any CBP land border port of
entry.
Applications for the northern border FAST participation should be
mailed to: FAST Commercial Driver Program, 4551 Zimmerman Avenue, P.O.
Box 66, Niagara Falls, ON L2E 6T1, Canada.
Southern border FAST applications should be mailed to: FAST
Commercial Driver Program, U.S. Customs and Border Protection, Box
371124, Pittsburgh, PA 15251-7124, U.S.A. Express mail submissions of
southern border applications may be mailed to: FAST Commercial Driver
Program, U.S. Customs and Border Protection, Attn: 371124, 500 Ross St.
154-0640, Pittsburgh, PA 15250, U.S.A.
If TSA becomes aware of another background check that is similar to
the threat assessment conducted on HME drivers, TSA will notify the
public. TSA invites any person who knows of another background check
that may be comparable to the one conducted for HME applicants to
contact Stephen Sadler, Director, Maritime and Surface Credentialing,
Office of Transportation Threat Assessment and Credentialing (see FOR
FURTHER INFORMATION CONTACT section).
IV. TSA Determination
TSA has determined that commercial vehicle drivers licensed in
Canada or Mexico who have been accepted into the FAST Commercial
Drivers program by CBP have completed a background records check that
satisfies the requirement under 49 U.S.C. 5103a (Section 7105(h)) of
SAFETEA-LU. Use of the FAST card for these drivers brings consistency
to the current rules so that the required background checks are
conducted on individuals who transport hazardous materials in the U.S.,
regardless of the authority that issues the license.
Commercial vehicle drivers licensed in Canada or Mexico who have
been admitted to the FAST Commercial Driver program will be deemed to
have satisfied the requirements of section 7105(h) of SAFETEA-LU and
thus will not be prohibited under SAFETEA-LU from transporting
placarded amounts of hazardous materials or any quantity of a material
listed as a select agent or toxin in 42 CFR part 73 within the United
States, for as long as their FAST card remains valid. CBP will be
responsible for enforcing these SAFETEA-LU requirements at all U.S.
land borders.
Note that all other requirements relating to the transport of
hazardous materials continue to apply, including those imposed by the
U.S. Department of Transportation. Further, this rule does not
supersede the requirements of Mexico and Canada for their drivers, such
as for the appropriate drivers licenses and hazardous materials
training.
V. Good Cause for Immediate Adoption and Immediate Effective Date
This action is being taken without providing prior notice and the
opportunity for 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
[[Page 44878]]
effective date requirement in section 553.
TSA finds that delaying the effective date of the rule and
providing an opportunity for prior notice and public comment on this
final rule is contrary to the public interest. This rule will be
published shortly before August 10, 2006, the date on which commercial
drivers licensed in Canada or Mexico will be unable to transport
hazardous materials into and within the United States unless this rule
has become effective. There is a significant public interest in
ensuring that commerce in hazardous materials between Canada and the
United States and between Mexico and the United States is not
interrupted. Such an interruption could cause economic harm to the
United States as a result of the loss of important materials required
by U.S. industry, and could also negatively impact the Canadian and
Mexican economies.
VI. SAFETEA-LU Procedures
As a result of TSA's determination that: (1) The FAST background
records check is similar to the security threat assessment standard
required for hazmat drivers licensed in the United States; and (2) it
meets the requirements of SAFETEA-LU, the procedures outlined below
must be followed:
1. Application for FAST cards. Beginning immediately, commercial
vehicle drivers licensed by Canada or Mexico may apply for admission to
the FAST Commercial Driver program.
2. Commercial drivers licensed in Canada or Mexico transporting
hazmat. As of August 10, 2006, commercial vehicle drivers licensed by
Canada or Mexico may use possession of a FAST card as evidence that
they have undergone a background check similar to the background check
required of U.S.-licensed drivers to transport hazardous materials or
any quantity of a material listed as a select agent or toxin in 42 CFR
part 73 within the United States.
3. Other requirements. All other requirements relating to the
transport of such materials continue to apply, such as those imposed by
the U.S. Department of Transportation for transport of hazardous
materials, and those imposed by the Governments of Mexico and Canada,
as appropriate.
VII. Transportation of Explosives From Canada
In 2002, Congress amended section 842(i) of Title 18, United States
Code (18 U.S.C. 842(i)); the amended section prohibits aliens from
transporting explosives in interstate or foreign commerce. However,
section 845(a)(1) of 18 U.S.C., provides an exception to section
842(i). Section 845(a)(1) provides that the prohibitions in section
842(i) do not apply to aspects of the transportation of explosive
materials that pertain to safety, including security, and that are
regulated by the Department of Transportation or DHS. Therefore, to the
extent that TSA rules address matters in section 842(i) (such as by
addressing the security risk posed by the transportation of explosives
by aliens), section 842(i) does not apply.
As noted above, in a separate rulemaking, TSA previously published
a rule (explosives rule), then codified at 49 CFR 1572.201, concerning
the transportation of explosives from Canada into the United States by
drivers who are not U.S. citizens or lawful permanent residents.\14\
The explosives rule rendered 18 U.S.C. 842(i) inapplicable to
commercial motor vehicle drivers licensed by Canada transporting
explosives in commerce. This interim rule implementing section 7105(h)
of SAFETEA-LU applies to the transport of placarded amounts of
explosives by motor vehicle within the meaning of 18 U.S.C. 845(a)(1);
therefore, the prohibitions of 18 U.S.C. 842(i) do not apply to
commercial motor vehicle drivers licensed by Canada or Mexico engaged
in such transportation in commerce.
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\14\ 68 FR 6083 (February 6, 2003); formerly codified in 49 CFR
1572.201.
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In pertinent part, the explosives rule provided that shipments of
explosives entering the United States from Canada via commercial motor
vehicle must be conducted by U.S. citizens, lawful permanent residents,
or a ``known carrier, known driver, and known offeror'' as determined
by the Governments of Canada and the United States. To implement this
rule for its drivers, Canada conducts a check of drivers authorized to
transport explosives and provides a list of the approved drivers to
U.S. border control agents. TSA conducts periodic name-based checks of
the individuals on the list to confirm their continued eligibility to
enter the United States with explosives shipments.\15\ All commercial
drivers licensed in Canada transporting explosives into the United
States had to appear on the list or they were not granted entry into
the United States.
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\15\ Formerly 49 CFR 1572.201.
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This interim rule removes the previous version of 49 CFR 1572.201
on the effective date of this rule and replaces it with this interim
rule. Accordingly, commercial drivers licensed in Canada who transport
explosives into the United States will need to hold FAST cards and will
no longer be subject to the requirements of the previous version of 49
CFR 1572.201.
The explosives rule applied to the transport of all explosives from
Canada, both in placarded and non-placarded loads. However, after the
explosives rule was published, TSA and the Pipeline and Hazardous
Materials Safety Administration (PHMSA) \16\ determined in the hazmat
rulemaking that only placarded loads of explosives present a security
and safety threat warranting the security threat assessment
requirements of the hazmat rule for purposes of the security of
domestic explosives transportation.\17\ As a result of that
determination, certain criminal provisions that previously applied to
the transportation of non-placarded explosives no longer apply.\18\ TSA
now makes a similar determination with respect to the transportation of
non-placarded explosives by non-U.S. registered drivers. TSA has
examined the security aspects of the transportation of explosives by
non-U.S. registered drivers and determined that only explosives shipped
in the amount and type that require placarding present a security
threat that warrants a background check similar to the check TSA
conducts on U.S. licensed drivers. Based on this determination and to
make the background records check requirements for commercial drivers
licensed in Canada similar to those for U.S. drivers, commercial
drivers licensed in Canada with non-placarded loads of explosives will
no longer be required to comply with the explosives rule, nor will they
be required to comply with Sec. 1572.201 as it is adopted in this
interim rule. In light of this determination, the provisions of 18
U.S.C. 842(i) do not apply to the transport of non-placarded explosives
by commercial vehicle drivers licensed by Canada or Mexico engaged in
such transportation in commerce.
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\16\ PHMSA, an agency within the U.S. Department of
Transportation, was formally called Research and Special Programs
Administration.
\17\ 68 FR at 23832, 23835-36 (May 5, 2003).
\18\ 18 U.S.C. 845(a)(1); 18 U.S.C. 842(i).
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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
[[Page 44879]]
requires through regulations. As protection provided by the Paperwork
Reduction Act, as amended, an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
TSA has determined that there are no current or new information
collection requirements associated with this rulemaking.
Economic Impact Analyses
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several economic
analyses. First, Executive Order 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).
Executive Order 12866 Assessment
In conducting these analyses, TSA has determined:
1. This rulemaking is not an economically ``significant regulatory
action'' as defined in the Executive Order as the costs and benefits do
not exceed $100 million in any one year. The rulemaking is significant
for other reasons as explained below.
2. This rulemaking is unlikely to have a significant impact on a
substantial number of small entities.
3. This rulemaking will not impose significant barriers to
international trade.
4. This rulemaking does not impose an unfunded mandate on State,
local, or tribal governments, or on the private sector.
Executive Order 12866 provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order. TSA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866 because
there is significant public interest in security issues.
This rulemaking implements the Safe, Accountable, Flexible,
Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU)
which requires that, as of August 10, 2006, commercial motor vehicle
drivers licensed in Canada or Mexico who transport hazardous materials
in the United States must undergo a background check similar to the one
required of U.S.-licensed operators with a hazardous materials
endorsement (HME) on a commercial drivers license (CDL). However, the
statute gave TSA authority to allow commercial motor vehicle drivers
licensed in Canada or Mexico to transport hazardous materials in the
United States if TSA determines that they have undergone a background
check similar to that required for U.S. drivers. TSA has concluded that
the background check required for a FAST card is similar to that
required of U.S. drivers. Accordingly, commercial drivers licensed in
Canada or Mexico may transport hazardous materials in the United States
if they are in possession of a valid FAST card.
The benefits of this rule include preserving hazardous materials
commerce between Canada and Mexico and the United States while
enhancing the security of the United States. Hazardous materials, by
definition, are ``capable of posing an unreasonable risk to health,
safety, and property.'' \19\ Drivers transporting hazardous materials
have the capability to inflict harm purposely to people or property.
This rule improves security by requiring Canadian- and Mexican-licensed
commercial motor vehicles drivers transporting hazardous materials to
pass an individual risk assessment conducted by CBP.
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\19\ 49 CFR 105.5.
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Before CBP issues a FAST card, each applicant must successfully
pass a background check based on a risk assessment process. This
process differs depending on which border the applicant chooses to
cross. For a northern border applicant the driver must successfully
pass a risk assessment by the Canadian government. Upon approval from
Canada, CBP will conduct a full U.S. risk based assessment.\20\ A
southern border application is sent to the CBP Risk Assessment Center.
In both cases, the driver must report to a CBP issuance center to
finalize the process and receive the FAST card. Only Canadian- and
Mexican-licensed commercial motor vehicles drivers who are considered
low risk and meet other criteria are approved for a FAST card and will
be permitted to transport hazardous materials into the United States.
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\20\ U.S. Customs and Border Protection Bureau. FAST Fact Sheet.
Accessed July 6, 2006. http://www.cbp.gov/linkhandler/cgov/import/commercial_enforcement/ctpat/fast/fast.ctt/FASTBrochure.doc
.
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Canadian-licensed drivers who transport explosives into the United
States are currently regulated by the explosives rule (49 CFR
1572.201), and will be affected by this rulemaking. Currently, these
drivers must submit their names to the Canadian Government, which, in
turn, provides a list of their names to TSA for periodic name-based
checks of the listed individuals. This rule eliminates the need for
multiple background checks by the U.S. Government.
Commercial vehicle drivers licensed in Canada or Mexico who
currently have a valid FAST card may transport hazardous material in
the U.S. As of June 2006, CBP has approved nearly 56,000 FAST cards for
drivers licensed in Canada and over 8,000 FAST cards for drivers
licensed in Mexico. These figures represent the entire population of
commercial motor vehicle drivers, not only those who carry hazardous
materials. TSA is unable to estimate precisely the number of drivers
licensed in Canada or Mexico who still need to obtain FAST cards to
continue to transport hazardous materials in the United States. The
Canadian Government estimates 20,000 drivers carry hazardous materials
across the U.S.-Canada border. DOT estimates 3,000 drivers carry
hazardous materials across the U.S.-Mexico border. Using the Canadian
and DOT estimates with other information, TSA is able to use a
threshold approach to verify that the rule is not economically
significant.
In May 2006, Transport Canada \21\ issued a statement to
stakeholders strongly recommending all commercial motor vehicle
operators registered to operate in Canada who transport dangerous goods
to apply for a FAST card prior to August 10, 2006. CBP has observed no
significant increase in FAST applications since Transport
[[Page 44880]]
Canada's announcement. This observation leads TSA to believe that a
large percentage of Canadian drivers who carry hazardous materials
already have FAST cards to expedite border crossings.
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\21\ Transport Canada is the department within the government of
Canada responsible for transportation regulations, policy, and
services.
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In order for the rule to have an annual impact on the economy of
$100 million or more, all of the 23,000 drivers licensed in Canada or
Mexico who transport hazardous materials in the United States would
have to incur average annual costs in excess of $4,347. The application
fee for the card is $50. CBP provides FAST enrollment sites located at
several border locations. Using the fully loaded average U.S. truck
driver wage rate of $25.27,\22\ 170 hours of opportunity cost would
have to be incurred per card annually to reach the threshold. This
upper limit is determined by multiplying the upper limit of the number
of drivers by the hours of opportunity cost in getting the card times
the average wage: 23,000 drivers x [$50/card + ( N hours x $25.27/hr)]
= $100,000,000. N [ap] 170 hours.
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\22\ Wage rates are from the BLS Web site accessed on July 14,
2006. http://data.bls.gov/PDQ/outside.jsp?survey=cm. Occupation
Code: 53-3032, Truck Drivers, Heavy and Tractor-Trailer, for a mean
rate of $17.05 and a fringe multiplier from Transportation and
Material Moving Occupations, All Civilian; http://www.bls.gov/oes/current/oes_nat.htm#b53-0000
.
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TSA estimates that each application would require approximately 1
hour per driver, resulting in a $75 total cost per driver. For the
23,000 estimated drivers a 1 hour opportunity cost would create a total
rule cost of approximately $1.7 million for all drivers assuming 1 FAST
card per driver: 23,000 drivers x [($50/card) + (1 hour x $25.27/hr)]
[ap] $1.7 million.
Regulatory Flexibility Act Assessment
The Regulatory Flexibility Act (RFA) of 1980 requires that agencies
perform a review to determine whether a proposed or final rule will
have a significant economic impact on a substantial number of small
entities. If the determination is that it will, the agency must prepare
a regulatory flexibility analysis as described in the RFA. For purposes
of the RFA, small entities include small businesses, not-for-profit
organizations, and small governmental jurisdictions. Individuals and
States are not included in the definition of a small entity.
Because good cause exists for issuing an interim final rule and the
agency did not publish a general notice of proposed rulemaking, this
rule does not require a regulatory flexibility analysis. Although this
rule does not require a regulatory flexibility analysis, we will
consider the effects of this interim rule under the Regulatory
Flexibility Act.
This rule impacts only commercial motor vehicle drivers licensed in
Canada and Mexico to carry hazardous materials in the United States.
TSA assumes most of these drivers already have a FAST card. Drivers
licensed in Canada or Mexico who are owner-operators and could be
classified as small entities may be impacted. For those owner-operators
who must apply for a FAST card, the burden is the cost of application
plus opportunity cost, which is perhaps a total of $75 as discussed
above. At this low cost, there is no individual annual business revenue
so low that TSA could envision both a viable business and a significant
cost to revenue ratio. Lastly, as each owner-operator will evaluate the
personal benefits as a business decision, only those that find it a
benefit will take steps to obtain a FAST card.
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 impose the
same costs on domestic and international entities and thus have a
neutral trade impact.
Currently, all U.S.-licensed operators with a hazardous materials
endorsement on a commercial driver's license are required to undergo a
background check. This rule allows drivers licensed in Canada and
Mexico to transport hazardous materials in the United States if they
obtain FAST cards. The effect of this rule is to place Canada-licensed
and Mexico-licensed drivers who transport hazardous materials on an
equal footing with U.S. drivers. Even if the total costs were $1.7
million as estimated, this cost would have no noticeable impact on
either trade or the U.S. economy.
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.
Executive Order 13132, Federalism
TSA has analyzed this interim final rule under the principles and
criteria of Executive Order 13132, Federalism. We 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, does not have federalism implications.
Environmental Analysis
TSA has reviewed this action under the Department of Homeland
Security (DHS) Management Directive 5100.1, ``Environmental Planning
Program'' (effective April 19, 2006), which guides TSA compliance with
the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-
4370f). We have determined that this proposal is covered by the
following categorical exclusions (CATEX) listed in Table 1 of the DHS
regulation: A3(a) (administrative and regulatory activities involving
the promulgation of rules and the development of policies); A3(d)
(guidance documents that interpret or amend an existing regulation
without changing its environmental effect); and B10 (identifications,
inspections, surveys or monitoring of imported products that cause
little or no physical alteration of the environment). In addition, we
have determined that the conditions set out in paragraph 3.2
(Conditions and Extraordinary Circumstances) are satisfied. This IFR is
issued to ensure that the motor vehicle transportation of hazardous
materials between Canada and the United States and between Mexico and
the United States meets U.S. laws, without significant interruption.
This IFR will not cause any change in the technical aspects of
commercial transportation of hazardous materials across the northern
and southern U.S. borders after August 10, 2006.
Energy Impact Analysis
The energy impact of the action has been assessed in accordance
with the Energy Policy and Conservation Act
[[Page 44881]]
(EPCA), Pub. L. 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 1572
Commercial drivers license, Criminal history background checks,
Explosives, Hazardous materials, Motor carriers, Motor vehicle
carriers, Security measures, Security threat assessment.
The Amendments
0
For the reasons set forth in the preamble, the Transportation Security
Administration amends Chapter XII of Title 49, Code of Federal
Regulations, by amending part 1572 as follows:
PART 1572--CREDENTIALING AND BACKGROUND CHECKS FOR LAND
TRANSPORTATION SECURITY
0
1. The authority citation for part 1572 continues to read as follows:
Authority: 49 U.S.C. 114, 5103a, 40113, and 46105; 18 U.S.C.
842, 845; Sec. 520, Pub. L. 108-90, 117 Stat. 1156 (6 U.S.C. 469).
Subpart C--Transportation of Hazardous Materials to and Within the
United States by Land Modes
0
2. Revise the heading for Subpart C as set forth above.
0
3. Revise Sec. 1572.201 to read as follows:
Sec. 1572.201 Transportation of hazardous materials via commercial
motor vehicle from Canada or Mexico to and within the United States.
(a) Applicability. This section applies to commercial motor vehicle
drivers licensed by Canada or Mexico.
(b) Terms used in this section. For purposes of this section:
FAST means Free and Secure Trade program of the Bureau of Customs
and Border Protection (CBP), a cooperative effort between CBP and the
governments of Canada and Mexico to coordinate processes for the
clearance of commercial shipments at the border.
Hazardous materials means any material that has been designated as
hazardous under 49 U.S.C. 5103 and is required to be placarded under
subpart F of 49 CFR part 172 or any quantity of a material listed as a
select agent or toxin in 42 CFR part 73. See 49 CFR 383.5.
Hazardous materials endorsement (HME) means the authorization for
an individual to transport hazardous materials in commerce, which must
be indicated on the individual's commercial driver's license.
(c) Background check required. A commercial vehicle driver who is
licensed by Canada or Mexico may not transport hazardous materials into
or within the United States unless the driver has undergone a
background check similar to the one required of U.S.-licensed operators
with a hazardous materials endorsement (HME) on a commercial drivers
license, as prescribed in Sec. 1572.5.
(1) A commercial vehicle driver who holds a current Free and Secure
Trade (FAST) program card satisfies the requirements of this section.
(2) Commercial vehicle drivers who wish to apply for a FAST program
card must contact the FAST Commercial Driver Program, Bureau of Customs
and Border Protection (CBP), Department of Homeland Security.
Issued in Arlington, Virginia, on August 2, 2006.
Kip Hawley,
Assistant Secretary.
[FR Doc. 06-6754 Filed 8-3-06; 1:57 pm]
BILLING CODE 9110-05-P