[Federal Register Volume 71, Number 151 (Monday, August 7, 2006)]
[Rules and Regulations]
[Pages 44874-44881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-6754]



[[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

Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules 
and Regulations

[[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 <a href="/cdn-cgi/l/email-protection#c7b4b3a2b7afa2a9e9b4a6a3aba2b587a3afb4e9a0a8b1"><span class="__cf_email__" data-cfemail="cab9beafbaa2afa4e4b9abaea6afb88aaea2b9e4ada5bc">[email protected]</span></a>.

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://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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \19\ 49 CFR 105.5.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \21\ Transport Canada is the department within the government of 
Canada responsible for transportation regulations, policy, and 
services.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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


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