44874 Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / 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. 

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. 

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 preexisting 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 selfaddressed, 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. 

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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 44875 

2Pub. L. 109–59, August 10, 2005, sec. 7105, 

codified at 49 U.S.C. 5103a(h). 

3 71 FR 7057 (February 10, 2006). 

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). 

7 49 CFR 1572.5(c). 

8 68 FR 6083 (February 6, 2003); formerly codified 

in 49 CFR 1572.201. 

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:// 

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. 

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. 

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 namebased 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. 

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 


sroberts on PROD1PC70 with RULES
44876 Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 

9Formerly 49 CFR 1572.201. 

10 49 U.S.C. 5103a(h)(1). 

11Membership 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. 

12FAST membership on the northern border is 

likewise subject to suspension by the Canadian 

government. 

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. 

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. 

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. 

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. 

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

TSA assessment, HME FAST card 13

Application criteria: 

Full legal name (and aliases) ...................... Y ....................................................................... Y 

Current residence ........................................ Y ....................................................................... Y 

Mail address (if different from residence) ... Y ....................................................................... Y 

Previous residence ...................................... Y ....................................................................... Y (5 yrs.). 

Date of birth ................................................ Y ....................................................................... Y 

Other personal identification information .... Y ....................................................................... Y 

Immigration status ....................................... Y ....................................................................... Y 

Alien registration number ............................ Y ....................................................................... Y 

CDL number ................................................ Y ....................................................................... DLN or CDL. 

Security threat assessment procedures: 

Intelligence-based checks ........................... Y ....................................................................... Y 

Fingerprint collected .................................... Y ....................................................................... Y 

Criminal records check ................................ Y ....................................................................... Y

Application fee ............................................. Y ....................................................................... Y 

Personal interview ....................................... N ....................................................................... Y 

Validity period .............................................. 5 years ............................................................. 5 years. 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 44877 

13The 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. 

COMPARISON OF HME AND FAST BACKGROUND CHECKS—Continued 

TSA assessment, HME FAST card 13

Disqualifying offenses ........................................ Temporary and permanently disqualifying 

crimes are listed in 49 CFR 1572. Conviction of any listed crime disqualifies the individual unless he or she obtains a waiver.

Consideration of crimes including, but not limited, to those listed in 49 CFR 1572, as well 

as customs and immigration offenses. Commission of some offenses does not lead to 

automatic ineligibility; considerations include 

date of offense, seriousness, and other factors. 

Other eligibility criteria ........................................ U.S. citizenship or lawful status ....................... Citizen or permanent resident of U.S., Mexico, 

or Canada. 

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 § 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. 

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 (Mexicobased) 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 


sroberts on PROD1PC70 with RULES
44878 Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 

14 68 FR 6083 (February 6, 2003); formerly 

codified in 49 CFR 1572.201. 

15Formerly 49 CFR 1572.201. 

16PHMSA, 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). 

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. 

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 namebased 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. 

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 nonplacarded 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 § 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. 

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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 44879 

19 49 CFR 105.5. 

20U.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. 

21Transport Canada is the department within the 

government of Canada responsible for 

transportation regulations, policy, and services. 

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. 

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 Canadianand 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. 

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 


sroberts on PROD1PC70 with RULES
44880 Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 

22Wage 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. 

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. 

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 × [$50/card + ( N hours × $25.27/ 

hr)] = $100,000,000. N ≈ 170 hours. 

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 × [($50/ 

card) + (1 hour × $25.27/hr)] ≈ $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 owneroperators 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 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 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 

■ 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 

■ 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 

■ 2. Revise the heading for Subpart C as 

set forth above. 

■ 3. Revise § 1572.201 to read as 

follows: 

§ 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 § 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 


sroberts on PROD1PC70 with RULES