Rule: Maritime and Land Transportation Security: Drivers Licensed by Canada or Mexico Transporting Hazardous Materials To and Within U.S.

Monday,
August 7, 2006
Part VI
Department of
Homeland Security
Transportation Security Administration
49 CFR Part 1572

Drivers Licensed by Canada or Mexico
Transporting Hazardous Materials to and
Within the United States; Interim Rule
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44874 Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations
DEPARTMENT OF HOMELAND Comments Filed Electronically: You addressed, stamped postcard on which
SECURITY may submit comments through the the docket number appears. We will
docket web site at http://dms.dot.gov. stamp the date on the postcard and mail
Transportation Security Administration You also may submit comments through it to you.
the Federal eRulemaking portal at TSA will file in the public docket all
49 CFR Part 1572 http://www.regulations.gov. comments received by TSA, except for
Comments Submitted by Mail, Fax, or comments containing confidential
[Docket No. TSA–2006–25541; Amendment In Person: Address or deliver your information and Sensitive Security
No. 1572–6] written, signed comments to the Docket Information (SSI) 1, TSA will consider
Management System, U.S. Department all comments received on or before the
RIN 1652–AA50
of Transportation, Room Plaza 401, 400 closing date for comments and will
Drivers Licensed by Canada or Mexico Seventh Street, SW., Washington, DC consider comments filed late to the
Transporting Hazardous Materials to 20590–0001; Fax: 202–493–2251. extent practicable. The docket is
and Within the United States See SUPPLEMENTARY INFORMATION for available for public inspection before
format and other information about and after the comment closing date.
AGENCY: Transportation Security comment submissions.
Administration, DHS. FOR FURTHER INFORMATION CONTACT:
Handling of Confidential or Proprietary
ACTION: Interim rule; request for Stephen Sadler, Director, Maritime and Information and Sensitive Security
comments. Surface Credentialing, Office of Information (SSI) Submitted in Public
Transportation Threat Assessment and Comments
SUMMARY: This interim rule announces Credentialing, TSA–19, Transportation Do not submit comments that include
that a commercial motor vehicle driver Security Administration, 601 South trade secrets, confidential commercial
licensed in Canada or Mexico who 12th Street, Arlington, VA 22202–4220; or financial information, or SSI to the
holds a Free and Secure Trade (FAST) telephone (571) 227–2492; facsimile public regulatory docket. Please submit
program card may use that card as an (703) 603–0409; e-mail such comments separately from other
acceptable credential to transport stephen.sadler@dhs.gov. comments on the rulemaking.
placarded amounts of hazardous
SUPPLEMENTARY INFORMATION: Comments containing this type of
materials or any quantity of a material
information should be appropriately
listed as a select agent or toxin in 42 Comments Invited marked as containing such information
CFR part 73 within the United States.
This interim rule is being adopted and submitted by mail to the address
The Safe, Accountable, Flexible,
without prior notice and prior public listed in FOR FURTHER INFORMATION
Efficient Transportation Equity Act: A
comment. However, to the maximum CONTACT section.
Legacy for Users (SAFETEA–LU)
extent possible, operating Upon receipt of such comments, TSA
requires that, as of August 10, 2006,
administrations within DHS will will not place the comments in the
commercial motor vehicle drivers
provide an opportunity for public public docket and will handle them in
licensed in Canada or Mexico who
comment on regulations issued without accordance with applicable safeguards
transport hazardous materials in the
prior notice. Accordingly, TSA invites and restrictions on access. TSA will
United States must undergo a
interested persons to participate in this hold them in a separate file to which the
background check similar to the one
rulemaking by submitting written public does not have access, and place
required of U.S.-licensed operators with
comments, data, or views. We also a note in the public docket that TSA has
a hazardous materials endorsement
invite comments relating to the received such materials from the
(HME) on a commercial drivers license
economic, environmental, energy, or commenter. If TSA receives a request to
(CDL). The Transportation Security
federalism impacts that might result examine or copy this information, TSA
Administration (TSA) has determined
from adopting the proposals in this will treat it as any other request under
that the background check required to
document. See ADDRESSES above for the Freedom of Information Act (FOIA)
obtain a credential under the FAST
information on where to submit (5 U.S.C. 552) and the Department of
program meets the background check
comments. Homeland Security’s (DHS’’) FOIA
requirements of SAFETEA–LU. TSA With each comment, please include
invites comment on any other existing regulation found in 6 CFR part 5.
your name and address, identify the
background check programs that satisfy docket number at the beginning of your Reviewing Comments in the Docket
the requirements under SAFETEA–LU. comments, and give the reason for each
This interim rule also removes pre- Please be aware that anyone is able to
comment. The most helpful comments search the electronic form of all
existing procedures for commercial reference a specific portion of the
drivers who transport explosives into comments received into any of our
rulemaking, explain the reason for any dockets by the name of the individual
the United States from Canada, and recommended change, and include
replaces it with a revised provision that submitting the comment (or signing the
supporting data. You may submit comment, if submitted on behalf of an
applies to commercial drivers who comments and material electronically,
transport explosives, as well as other association, business, labor union, etc.).
in person, by mail, or fax as provided You may review the applicable Privacy
hazardous materials, into and within the under ADDRESSES, but please submit
United States. Act Statement published in the Federal
your comments and material by only Register on April 11, 2000 (65 FR
DATES: Effective Date: This rule is one means. If you submit comments by
effective on August 10, 2006. mail or delivery, submit them in two 1 ‘‘Sensitive Security Information’’ or ‘‘SSI’’ is
Comment Date: Comments must be copies, in an unbound format, no larger information obtained or developed in the conduct
received by October 6, 2006. than 8.5 by 11 inches, suitable for of security activities, the disclosure of which would
ADDRESSES: You may submit comments, copying and electronic filing. constitute an unwarranted invasion of privacy,
reveal trade secrets or privileged or confidential
identified by the TSA docket number to If you want TSA to acknowledge information, or be detrimental to the security of
this rulemaking, using any one of the receipt of comments submitted by mail, transportation. The protection of SSI is governed by
following methods: include with your comments a self- 49 CFR part 1520.
Federal Register / Vol. 71, No. 151 / Monday, August 7, 2006 / Rules and Regulations 44875
19477), or you may visit http:// SAFETEA–LU—The Safe, Accountable, CFR part 73.6 Persons who transport
dms.dot.gov. Flexible, Efficient Transportation hazardous materials not requiring
You may review the comments in the Equity Act: A Legacy for Users placarding and who do not transport
public docket by visiting the Dockets TSA—Transportation Security any quantity of a material listed as a
Office between 9 a.m. and 5 p.m., Administration select agent or toxin in 42 CFR part 73
Monday through Friday, except Federal TWIC—Transportation Worker are not required to have an HME or a
holidays. The Dockets Office is located Identification Credential TSA threat assessment.
on the plaza level of the Nassif Building I. Background U.S.-licensed drivers who apply for,
at the Department of Transportation transfer, or renew a CDL with an HME
address, previously provided under The Safe, Accountable, Flexible, must undergo fingerprint-based criminal
Efficient Transportation Equity Act: A history record checks (CHRC) and name-
ADDRESSES. Also, you may review
Legacy for Users (SAFETEA–LU) was based checks against relevant
public dockets on the Internet at
enacted on August 10, 2005.2 Section immigration, intelligence, and
http://dms.dot.gov.
7105(h) of SAFETEA–LU requires that a international databases. An applicant is
Availability of Rulemaking Document commercial motor vehicle driver disqualified if he or she does not meet
You can get an electronic copy using licensed by Canada or Mexico shall not certain citizenship and immigration
the Internet by— operate a commercial motor vehicle standards, is wanted or under
transporting hazardous materials in the indictment for certain felonies, has a
(1) Searching the Department of
United States until the driver has conviction in military or civilian court
Transportation’s electronic Docket
undergone a background records check for certain felonies, has been
Management System (DMS) Web page
similar to the one required of adjudicated as lacking mental capacity
(http://dms.dot.gov/search);
commercial motor vehicle operators or involuntarily committed to a mental
(2) Accessing the Government licensed in the United States to
Printing Office’s Web page at http:// institution, or is determined to pose a
transport hazardous materials. This security threat based on a review of
www.gpoaccess.gov/fr/index.html; or provision was to become effective six
(3) Visiting TSA’s Security pertinent databases.7 TSA’s hazmat rule
months after the date of enactment. also includes appeal and waiver
Regulations Web page at http:// However, the statute gave TSA the
www.tsa.gov and accessing the link for procedures.
discretion to extend the implementation The hazmat rule, however, only
‘‘Research Center’’ at the top of the page. date an additional six months if
In addition, copies are available by applies to drivers who receive a CDL
necessary. On February 10, 2006, TSA with an HME issued by a state of the
writing or calling the individual in the published a notice in the Federal
FOR FURTHER INFORMATION CONTACT
United States or the District of
Register announcing that TSA had Columbia. Therefore, under the hazmat
section. Make sure to identify the docket extended the deadline until August 10,
number of this rulemaking. rule, drivers licensed in Canada or
2006.3 Accordingly, effective August 10, Mexico who transport hazardous
Small Entity Inquiries 2006, commercial motor vehicle materials in the U.S. do not undergo the
operators licensed in Canada or Mexico background records check that is
The Small Business Regulatory who intend to transport hazardous
Enforcement Fairness Act (SBREFA) of required of U.S. licensed hazmat
materials in the United States must be drivers.
1996 requires TSA to comply with small able to demonstrate that they have
entity requests for information and TSA previously published a rule
undergone a background check similar concerning the transportation of
advice about compliance with statutes to the background check required of
and regulations within TSA’s explosives from Canada (explosives
U.S.-licensed drivers transporting rule) into the United States by drivers
jurisdiction. Any small entity that has a hazardous materials.
question regarding this document may who are not U.S. citizens or lawful
contact the person listed in FOR FURTHER II. Threat Assessment Standards for permanent residents.8 In pertinent part,
INFORMATION CONTACT. Persons can Transportation of Hazardous Materials the rule, which was codified at 49
obtain further information regarding The current background check U.S.C. 1572.201 and is now superseded
SBREFA on the Small Business requirement for U.S.-licensed drivers of by this interim rule, provided that
Administration’s web page at http:// hazardous materials is found in TSA’s shipments of explosives entering the
www.sba.gov/advo/laws/law_lib.html. hazardous materials rule (hazmat rule), United States from Canada via
which requires a security threat commercial motor vehicles must be
Abbreviations and Terms Used in This assessment for U.S. commercial drivers transported by U.S. citizens, lawful
Document who apply for a new, renewal, or permanent residents, or a ‘‘known
CBP—Bureau of Customs and Border transfer of a hazardous materials carrier, known driver, and known
Protection endorsement (HME) on a commercial offeror’’ as determined by the
CDL—Commercial drivers license drivers license (CDL).4 The hazmat rule governments of Canada and the United
CHRC—Criminal history records check applies to commercial drivers who States. To implement this rule for
transport hazardous materials in drivers licensed in Canada, Canada
DHS—Department of Homeland
quantities requiring placarding under conducts a check of commercial drivers
Security
regulations issued by the U.S. licensed in Canada and authorized to
FAST—Free and Secure Trade program
Department of Transportation (DOT)5 or transport explosives, and provides a list
HME—Hazardous materials
who transport any quantity of a material of the approved drivers to TSA. TSA
endorsement
listed as a select agent or toxin in 42 conducts periodic name-based checks of
Hazardous Materials (hazmat)—
the individuals on the list to confirm
Materials transported in quantities
their continued eligibility to enter the
2 Pub. L. 109–59, August 10, 2005, sec. 7105,

requiring placarding under
codified at 49 U.S.C. 5103a(h).
regulations issued by the U.S. 3 71 FR 7057 (February 10, 2006). 6 49 CFR 383.5, 383.93(b)(4).
Department of Transportation or any 4 69 FR 68720 (November 24, 2004); now codified 7 49 CFR 1572.5(c).
quantity of a material listed as a select in 49 CFR parts 1570, 1572. 8 68 FR 6083 (February 6, 2003); formerly codified
agent or toxin in 42 CFR part 73 5 49 CFR part 172. in 49 CFR 1572.201.
United States with explosives processing at U.S. borders and CBP Canada conducts a similar background
shipments and provides the list of exercises full discretion in determining records check of applicants seeking
approved drivers to the Bureau of whether a person may be authorized to FAST privileges on the northern border.
Customs and Border Protection (CBP).9 participate (or continue to participate) Upon acceptance into the program, the
Prior to the effective date of this interim in this program. driver is issued a FAST card that is
rule, all operators transporting The FAST program is a cooperative valid for five years, subject to CBP
explosives into the United States were effort between CBP and the governments suspension or revocation for violation of
required to appear on the list to be of Canada and Mexico to coordinate membership rules.12 CBP also
granted entry into the United States. processes for the clearance of periodically checks the backgrounds of
The threat assessment required in the commercial shipments at the border. those who hold FAST cards against
explosives rule that is being replaced by Eligibility for the FAST program relevant databases to confirm ongoing
this rule, however, was not as extensive requires participants (carriers, eligibility. The background check
as the one required of U.S.-licensed commercial drivers, importers, and conducted for FAST commercial driver
drivers under the hazmat rule. Further, southern border manufacturers) to applicants both meets the vetting
the explosives rule applied only to the submit an application and, if applicable, standard set forth under SAFETEA–LU
transport of explosives, a subset of the a security profile.11 The FAST program and is widely available to drivers
hazardous materials covered by the allows known, low-risk participants to licensed in Canada or Mexico.
hazmat rule, and the explosives rule did receive expedited border processing. TSA has concluded that the FAST
not apply to drivers entering the United Under the FAST Commercial Driver background records check for
States from Mexico. Accordingly, the Program, commercial truck drivers commercial driver applicants is similar
explosives rule does not provide a licensed in Canada, Mexico, or the to that required for domestic HME
process similar to the one required of United States may volunteer to undergo drivers. Accordingly, TSA concludes
U.S. commercial motor vehicle a background records check and, if they that acceptance into the FAST
operators who obtain an HME, and thus complete it satisfactorily, may receive Commercial Driver program is sufficient
does not satisfy the requirements of their individual FAST card and evidence that the holder of the card has
SAFETEA–LU. expedited entrance privileges for undergone a threat assessment similar to
commercial purposes at the northern that required for domestic HME holders.
III. Bureau of Customs and Border
and southern borders, subject to other TSA’s conclusion that the background
Protection FAST Card
requirements. checks for the FAST program and for
TSA has identified a program Under the FAST Commercial Driver the HME program are similar is based
currently in place that is conducted by program, CBP verifies and validates on the general comparison summarized
the Bureau of Customs and Border applicant information, conducts a briefly in the table below. Both include
Protection (CBP), an agency within the personal interview with each applicant, thorough criminal history records
Department of Homeland Security examines driver original identification checks, immigration status checks, and
(DHS), which requires a background and documentation, obtains fingerprints intelligence-based checks. Both request
records check that satisfies the vetting and a photograph, and conducts a substantial quantity of information
standard requirements as set forth under fingerprint-based criminal history from applicants to provide assurance of
SAFETEA–LU for commercial vehicle records checks and name-based checks the individual’s identity. As a result,
operators licensed to operate in Mexico of pertinent intelligence and TSA has determined that the FAST
or Canada.10 FAST is a voluntary immigration databases. In addition, in background check is similar to the one
program for those who seek expedited accordance with the cooperative effort, 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.
9 Formerly 49 CFR 1572.201. voluntary trade security program, is also required 12 FAST membership on the northern border is
10 49U.S.C. 5103a(h)(1). for some applicants. A security profile is required likewise subject to suspension by the Canadian
11 Membership in the Customs-Trade Partnership of C–TPAT applicants. government.
Against Terrorism (C–TPAT), another CBP
COMPARISON OF HME AND FAST BACKGROUND CHECKS—Continued

TSA assessment, HME FAST card 13
Disqualifying offenses ........................................ Temporary and permanently disqualifying Consideration of crimes including, but not lim-
crimes are listed in 49 CFR 1572. Convic- ited, to those listed in 49 CFR 1572, as well
tion of any listed crime disqualifies the indi- as customs and immigration offenses. Com-
vidual unless he or she obtains a waiver. mission of some offenses does not lead to
automatic ineligibility; considerations include
date of offense, seriousness, and other fac-
tors.
Other eligibility criteria ........................................ U.S. citizenship or lawful status ....................... Citizen or permanent resident of U.S., Mexico,
or Canada.
For drivers who are denied Northern border (Canada-based) conducted on individuals who transport
participation in the FAST program, TSA applicants must be approved by CBP, hazardous materials in the U.S.,
is actively exploring other options for Citizenship and Immigration Canada regardless of the authority that issues
satisfying the SAFETEA–LU (CIC), and Canada Border Services the license.
requirement. To date, TSA has not Agency (CBSA). The United States and Commercial vehicle drivers licensed
identified, and the Canadian and Canada honor northern border FAST in Canada or Mexico who have been
Mexican governments have not shown, cards. For southern border (Mexico- admitted to the FAST Commercial
another credential or process that based) applicants, the vetting process is Driver program will be deemed to have
demonstrates the holder has undergone completed exclusively by CBP. Northern satisfied the requirements of section
a threat assessment similar to the one and southern border FAST driver cards 7105(h) of SAFETEA–LU and thus will
required of domestic HME holders. As are equally valid at any CBP land border not be prohibited under SAFETEA–LU
a result of the SAFETEA–LU port of entry. from transporting placarded amounts of
requirement, until TSA determines that Applications for the northern border hazardous materials or any quantity of
another background check is similar to FAST participation should be mailed to: a material listed as a select agent or
that prescribed in 49 CFR § 1572.5, FAST Commercial Driver Program, 4551 toxin in 42 CFR part 73 within the
commercial motor vehicle drivers Zimmerman Avenue, P.O. Box 66, United States, for as long as their FAST
licensed by Canada or Mexico who wish Niagara Falls, ON L2E 6T1, Canada. card remains valid. CBP will be
to transport hazardous materials into or Southern border FAST applications responsible for enforcing these
within the United States will have to should be mailed to: FAST Commercial SAFETEA-LU requirements at all U.S.
apply to the FAST Commercial Driver Driver Program, U.S. Customs and land borders.
Program, successfully complete the Border Protection, Box 371124, Note that all other requirements
FAST background records, and pay Pittsburgh, PA 15251–7124, U.S.A. relating to the transport of hazardous
certain associated enrollment fees to Express mail submissions of southern materials continue to apply, including
transport hazardous materials in the border applications may be mailed to: those imposed by the U.S. Department
United States. FAST Commercial Driver Program, U.S. of Transportation. Further, this rule
It is important to remember that this Customs and Border Protection, Attn: does not supersede the requirements of
IFR does not require drivers licensed in 371124, 500 Ross St. 154–0640, Mexico and Canada for their drivers,
Canada and Mexico to obtain FAST Pittsburgh, PA 15250, U.S.A. such as for the appropriate drivers
cards; participation in FAST is If TSA becomes aware of another licenses and hazardous materials
voluntary. Rather, it provides an background check that is similar to the training.
exception from the prohibition that threat assessment conducted on HME
SAFETEA–LU would impose otherwise, V. Good Cause for Immediate Adoption
drivers, TSA will notify the public. TSA
providing drivers the option of taking and Immediate Effective Date
invites any person who knows of
advantage of this opportunity to qualify another background check that may be This action is being taken without
to transport hazardous materials in the comparable to the one conducted for providing prior notice and the
U.S. if they conclude that it is HME applicants to contact Stephen opportunity for comment, and it
beneficial. Sadler, Director, Maritime and Surface provides for an effective date less than
To apply for FAST, commercial Credentialing, Office of Transportation 30 days after publication in the Federal
drivers must fill out an application Threat Assessment and Credentialing Register.
form. The application is available to (see FOR FURTHER INFORMATION CONTACT Sections 553(b) and (d) of the
review and download http:// section). Administrative Procedure Act (APA) (5
www.cbp.gov/xp/cgov/import/ U.S.C. 553) authorize agencies to
commercial_enforcement/ctpat/fast/. IV. TSA Determination dispense with certain notice procedures
There are separate forms for northern TSA has determined that commercial for rules when they find ‘‘good cause’’
and southern border participation. vehicle drivers licensed in Canada or to do so. Under section 553(b), the
Mexico who have been accepted into requirements of notice and opportunity
13 The criteria outlined in this FAST card column
the FAST Commercial Drivers program for comment do not apply when the
are representative of the factors considered by CBP
in reviewing applications for FAST participation.
by CBP have completed a background agency for good cause finds that those
This is not a complete list of factors that may be records check that satisfies the procedures are ‘‘impracticable,
considered by CBP and does not represent the requirement under 49 U.S.C. 5103a unnecessary, or contrary to the public
factors that may be considered by the Canadian (Section 7105(h)) of SAFETEA–LU. Use interest.’’ Section 553(d) allows an
government for persons applying for FAST on the
northern border. Persons applying for FAST on the
of the FAST card for these drivers brings agency, upon finding good cause, to
northern border must be approved for participation consistency to the current rules so that make a rule effective immediately,
by both CBP and the Canadian government. the required background checks are thereby avoiding the 30-day delayed
effective date requirement in section of 18 U.S.C., provides an exception to need to hold FAST cards and will no
553. section 842(i). Section 845(a)(1) longer be subject to the requirements of
TSA finds that delaying the effective provides that the prohibitions in section the previous version of 49 CFR
date of the rule and providing an 842(i) do not apply to aspects of the 1572.201.
opportunity for prior notice and public transportation of explosive materials The explosives rule applied to the
comment on this final rule is contrary that pertain to safety, including security, transport of all explosives from Canada,
to the public interest. This rule will be and that are regulated by the both in placarded and non-placarded
published shortly before August 10, Department of Transportation or DHS. loads. However, after the explosives rule
2006, the date on which commercial Therefore, to the extent that TSA rules was published, TSA and the Pipeline
drivers licensed in Canada or Mexico address matters in section 842(i) (such and Hazardous Materials Safety
will be unable to transport hazardous as by addressing the security risk posed Administration (PHMSA) 16 determined
materials into and within the United by the transportation of explosives by in the hazmat rulemaking that only
States unless this rule has become aliens), section 842(i) does not apply. placarded loads of explosives present a
effective. There is a significant public As noted above, in a separate security and safety threat warranting the
interest in ensuring that commerce in rulemaking, TSA previously published a security threat assessment requirements
hazardous materials between Canada rule (explosives rule), then codified at of the hazmat rule for purposes of the
and the United States and between 49 CFR 1572.201, concerning the security of domestic explosives
Mexico and the United States is not transportation of explosives from transportation.17 As a result of that
interrupted. Such an interruption could Canada into the United States by drivers determination, certain criminal
cause economic harm to the United who are not U.S. citizens or lawful provisions that previously applied to
States as a result of the loss of important permanent residents.14 The explosives the transportation of non-placarded
materials required by U.S. industry, and rule rendered 18 U.S.C. 842(i) explosives no longer apply.18 TSA now
could also negatively impact the inapplicable to commercial motor makes a similar determination with
Canadian and Mexican economies. vehicle drivers licensed by Canada respect to the transportation of non-
transporting explosives in commerce. placarded explosives by non-U.S.
VI. SAFETEA–LU Procedures This interim rule implementing section registered drivers. TSA has examined
As a result of TSA’s determination 7105(h) of SAFETEA–LU applies to the the security aspects of the transportation
that: (1) The FAST background records transport of placarded amounts of of explosives by non-U.S. registered
check is similar to the security threat explosives by motor vehicle within the drivers and determined that only
assessment standard required for meaning of 18 U.S.C. 845(a)(1); explosives shipped in the amount and
hazmat drivers licensed in the United therefore, the prohibitions of 18 U.S.C. type that require placarding present a
States; and (2) it meets the requirements 842(i) do not apply to commercial motor security threat that warrants a
of SAFETEA–LU, the procedures vehicle drivers licensed by Canada or background check similar to the check
outlined below must be followed: Mexico engaged in such transportation TSA conducts on U.S. licensed drivers.
1. Application for FAST cards. in commerce. Based on this determination and to
Beginning immediately, commercial In pertinent part, the explosives rule make the background records check
vehicle drivers licensed by Canada or provided that shipments of explosives requirements for commercial drivers
Mexico may apply for admission to the entering the United States from Canada licensed in Canada similar to those for
FAST Commercial Driver program. via commercial motor vehicle must be U.S. drivers, commercial drivers
2. Commercial drivers licensed in conducted by U.S. citizens, lawful licensed in Canada with non-placarded
Canada or Mexico transporting hazmat. permanent residents, or a ‘‘known loads of explosives will no longer be
As of August 10, 2006, commercial carrier, known driver, and known required to comply with the explosives
vehicle drivers licensed by Canada or offeror’’ as determined by the rule, nor will they be required to
Mexico may use possession of a FAST Governments of Canada and the United comply with § 1572.201 as it is adopted
card as evidence that they have States. To implement this rule for its in this interim rule. In light of this
undergone a background check similar drivers, Canada conducts a check of determination, the provisions of 18
to the background check required of drivers authorized to transport U.S.C. 842(i) do not apply to the
U.S.-licensed drivers to transport explosives and provides a list of the transport of non-placarded explosives
hazardous materials or any quantity of approved drivers to U.S. border control by commercial vehicle drivers licensed
a material listed as a select agent or agents. TSA conducts periodic name- by Canada or Mexico engaged in such
toxin in 42 CFR part 73 within the based checks of the individuals on the transportation in commerce.
United States. list to confirm their continued eligibility
3. Other requirements. All other to enter the United States with Paperwork Reduction Act
requirements relating to the transport of explosives shipments.15 All commercial The Paperwork Reduction Act of 1995
such materials continue to apply, such drivers licensed in Canada transporting (PRA) (44 U.S.C. 3501 et seq.) requires
as those imposed by the U.S. explosives into the United States had to that a Federal agency consider the
Department of Transportation for appear on the list or they were not impact of paperwork and other
transport of hazardous materials, and granted entry into the United States. information collection burdens imposed
those imposed by the Governments of This interim rule removes the on the public and, under the provisions
Mexico and Canada, as appropriate. previous version of 49 CFR 1572.201 on of PRA section 3507(d), obtain approval
VII. Transportation of Explosives From the effective date of this rule and from the Office of Management and
Canada replaces it with this interim rule. Budget (OMB) for each collection of
Accordingly, commercial drivers information it conducts, sponsors, or
In 2002, Congress amended section licensed in Canada who transport
842(i) of Title 18, United States Code explosives into the United States will 16 PHMSA, an agency within the U.S. Department
(18 U.S.C. 842(i)); the amended section of Transportation, was formally called Research and
prohibits aliens from transporting 14 68 FR 6083 (February 6, 2003); formerly Special Programs Administration.
explosives in interstate or foreign codified in 49 CFR 1572.201. 17 68 FR at 23832, 23835–36 (May 5, 2003).
commerce. However, section 845(a)(1) 15 Formerly 49 CFR 1572.201. 18 18 U.S.C. 845(a)(1); 18 U.S.C. 842(i).
requires through regulations. As regulatory action is ‘‘significant’’ and assessment.20 A southern border
protection provided by the Paperwork therefore subject to Office of application is sent to the CBP Risk
Reduction Act, as amended, an agency Management and Budget (OMB) review Assessment Center. In both cases, the
may not conduct or sponsor, and a and to the requirements of the Executive driver must report to a CBP issuance
person is not required to respond to, a Order. TSA has determined that this center to finalize the process and
collection of information unless it action is a significant regulatory action receive the FAST card. Only Canadian-
displays a currently valid OMB control within the meaning of Executive Order and Mexican-licensed commercial
number. 12866 because there is significant public motor vehicles drivers who are
TSA has determined that there are no interest in security issues. considered low risk and meet other
current or new information collection criteria are approved for a FAST card
requirements associated with this This rulemaking implements the Safe,
and will be permitted to transport
rulemaking. Accountable, Flexible, Efficient
hazardous materials into the United
Transportation Equity Act: A Legacy for
Economic Impact Analyses States.
Users (SAFETEA–LU) which requires Canadian-licensed drivers who
Regulatory Evaluation Summary that, as of August 10, 2006, commercial transport explosives into the United
motor vehicle drivers licensed in States are currently regulated by the
Changes to Federal regulations must Canada or Mexico who transport
undergo several economic analyses. explosives rule (49 CFR 1572.201), and
hazardous materials in the United States will be affected by this rulemaking.
First, Executive Order 12866, Regulatory must undergo a background check
Planning and Review (58 FR 51735, Currently, these drivers must submit
similar to the one required of U.S.- their names to the Canadian
October 4, 1993), directs each Federal licensed operators with a hazardous
agency to propose or adopt a regulation Government, which, in turn, provides a
materials endorsement (HME) on a list of their names to TSA for periodic
only upon a reasoned determination commercial drivers license (CDL).
that the benefits of the intended name-based checks of the listed
However, the statute gave TSA authority individuals. This rule eliminates the
regulation justify its costs. Second, the to allow commercial motor vehicle
Regulatory Flexibility Act of 1980 (5 need for multiple background checks by
drivers licensed in Canada or Mexico to the U.S. Government.
U.S.C. 601 et seq., as amended by the
transport hazardous materials in the Commercial vehicle drivers licensed
Small Business Regulatory Enforcement
United States if TSA determines that in Canada or Mexico who currently
Fairness Act (SBREFA) of 1996) requires
they have undergone a background have a valid FAST card may transport
agencies to analyze the economic
check similar to that required for U.S. hazardous material in the U.S. As of
impact of regulatory changes on small
drivers. TSA has concluded that the June 2006, CBP has approved nearly
entities. Third, the Trade Agreements
background check required for a FAST 56,000 FAST cards for drivers licensed
Act (19 U.S.C. 2531–2533) prohibits
card is similar to that required of U.S. in Canada and over 8,000 FAST cards
agencies from setting standards that
drivers. Accordingly, commercial for drivers licensed in Mexico. These
create unnecessary obstacles to the
drivers licensed in Canada or Mexico figures represent the entire population
foreign commerce of the United States.
Fourth, the Unfunded Mandates Reform may transport hazardous materials in of commercial motor vehicle drivers,
Act of 1995 (2 U.S.C. 1531–1538) the United States if they are in not only those who carry hazardous
requires agencies to prepare a written possession of a valid FAST card. materials. TSA is unable to estimate
assessment of the costs, benefits, and The benefits of this rule include precisely the number of drivers licensed
other effects of proposed or final rules preserving hazardous materials in Canada or Mexico who still need to
that include a Federal mandate likely to commerce between Canada and Mexico obtain FAST cards to continue to
result in the expenditure by State, local, and the United States while enhancing transport hazardous materials in the
or tribal governments, in the aggregate, the security of the United States. United States. The Canadian
or by the private sector, of $100 million Hazardous materials, by definition, are Government estimates 20,000 drivers
or more annually (adjusted for ‘‘capable of posing an unreasonable risk carry hazardous materials across the
inflation). to health, safety, and property.’’ 19 U.S.-Canada border. DOT estimates
Drivers transporting hazardous 3,000 drivers carry hazardous materials
Executive Order 12866 Assessment across the U.S.-Mexico border. Using
materials have the capability to inflict
In conducting these analyses, TSA has harm purposely to people or property. the Canadian and DOT estimates with
determined: This rule improves security by requiring other information, TSA is able to use a
1. This rulemaking is not an Canadian- and Mexican-licensed threshold approach to verify that the
economically ‘‘significant regulatory commercial motor vehicles drivers rule is not economically significant.
action’’ as defined in the Executive transporting hazardous materials to pass In May 2006, Transport Canada 21
Order as the costs and benefits do not an individual risk assessment issued a statement to stakeholders
exceed $100 million in any one year. conducted by CBP. strongly recommending all commercial
The rulemaking is significant for other motor vehicle operators registered to
reasons as explained below. Before CBP issues a FAST card, each
operate in Canada who transport
2. This rulemaking is unlikely to have applicant must successfully pass a
dangerous goods to apply for a FAST
a significant impact on a substantial background check based on a risk
card prior to August 10, 2006. CBP has
number of small entities. assessment process. This process differs
observed no significant increase in
3. This rulemaking will not impose depending on which border the
FAST applications since Transport
significant barriers to international applicant chooses to cross. For a
trade. northern border applicant the driver 20 U.S. Customs and Border Protection Bureau.
4. This rulemaking does not impose must successfully pass a risk assessment FAST Fact Sheet. Accessed July 6, 2006. http://
an unfunded mandate on State, local, or by the Canadian government. Upon www.cbp.gov/linkhandler/cgov/import/

approval from Canada, CBP will commercial_enforcement/ctpat/fast/fast.ctt/
tribal governments, or on the private FASTBrochure.doc.
sector. conduct a full U.S. risk based 21 Transport Canada is the department within the
Executive Order 12866 provides for government of Canada responsible for
making determinations whether a 19 49 CFR 105.5. transportation regulations, policy, and services.
Canada’s announcement. This effects of this interim rule under the result in a $100 million or more
observation leads TSA to believe that a Regulatory Flexibility Act. expenditure (adjusted annually for
large percentage of Canadian drivers This rule impacts only commercial inflation) in any one year by State, local,
who carry hazardous materials already motor vehicle drivers licensed in and tribal governments, in the aggregate,
have FAST cards to expedite border Canada and Mexico to carry hazardous or by the private sector; such a mandate
crossings. materials in the United States. TSA is deemed to be a ‘‘significant regulatory
In order for the rule to have an annual assumes most of these drivers already action.’’
impact on the economy of $100 million have a FAST card. Drivers licensed in This rulemaking does not contain
or more, all of the 23,000 drivers Canada or Mexico who are owner- such a mandate. The requirements of
licensed in Canada or Mexico who operators and could be classified as Title II of the Act, therefore, do not
transport hazardous materials in the small entities may be impacted. For apply and TSA has not prepared a
United States would have to incur those owner-operators who must apply statement under the Act.
average annual costs in excess of $4,347. for a FAST card, the burden is the cost
Executive Order 13132, Federalism
The application fee for the card is $50. of application plus opportunity cost,
CBP provides FAST enrollment sites which is perhaps a total of $75 as TSA has analyzed this interim final
located at several border locations. discussed above. At this low cost, there rule under the principles and criteria of
Using the fully loaded average U.S. is no individual annual business Executive Order 13132, Federalism. We
truck driver wage rate of $25.27,22 170 revenue so low that TSA could envision determined that this action will not
hours of opportunity cost would have to both a viable business and a significant have a substantial direct effect on the
be incurred per card annually to reach cost to revenue ratio. Lastly, as each States, or the relationship between the
the threshold. This upper limit is owner-operator will evaluate the National Government and the States, or
determined by multiplying the upper personal benefits as a business decision, on the distribution of power and
limit of the number of drivers by the only those that find it a benefit will take responsibilities among the various
hours of opportunity cost in getting the steps to obtain a FAST card. levels of government, and, therefore,
card times the average wage: 23,000 does not have federalism implications.
International Trade Impact Assessment
drivers × [$50/card + ( N hours × $25.27/ Environmental Analysis
hr)] = $100,000,000. N ≈ 170 hours. The Trade Agreement Act of 1979
prohibits Federal agencies from TSA has reviewed this action under
TSA estimates that each application
establishing any standards or engaging the Department of Homeland Security
would require approximately 1 hour per
in related activities that create (DHS) Management Directive 5100.1,
driver, resulting in a $75 total cost per
unnecessary obstacles to the foreign ‘‘Environmental Planning Program’’
driver. For the 23,000 estimated drivers
commerce of the United States. (effective April 19, 2006), which guides
a 1 hour opportunity cost would create
Legitimate domestic objectives, such as TSA compliance with the National
a total rule cost of approximately $1.7
safety, are not considered unnecessary Environmental Policy Act of 1969
million for all drivers assuming 1 FAST
obstacles. The statute also requires (NEPA) (42 U.S.C. 4321–4370f). We
card per driver: 23,000 drivers × [($50/
consideration of international standards have determined that this proposal is
card) + (1 hour × $25.27/hr)] ≈ $1.7
and, where appropriate, that they be the covered by the following categorical
million.
basis for U.S. standards. TSA has exclusions (CATEX) listed in Table 1 of
Regulatory Flexibility Act Assessment assessed the potential effect of this the DHS regulation: A3(a)
The Regulatory Flexibility Act (RFA) rulemaking and has determined that it (administrative and regulatory activities
of 1980 requires that agencies perform a will impose the same costs on domestic involving the promulgation of rules and
review to determine whether a proposed and international entities and thus have the development of policies); A3(d)
or final rule will have a significant a neutral trade impact. (guidance documents that interpret or
economic impact on a substantial Currently, all U.S.-licensed operators amend an existing regulation without
number of small entities. If the with a hazardous materials endorsement changing its environmental effect); and
determination is that it will, the agency on a commercial driver’s license are B10 (identifications, inspections,
must prepare a regulatory flexibility required to undergo a background surveys or monitoring of imported
analysis as described in the RFA. For check. This rule allows drivers licensed products that cause little or no physical
purposes of the RFA, small entities in Canada and Mexico to transport alteration of the environment). In
include small businesses, not-for-profit hazardous materials in the United States addition, we have determined that the
organizations, and small governmental if they obtain FAST cards. The effect of conditions set out in paragraph 3.2
jurisdictions. Individuals and States are this rule is to place Canada-licensed and (Conditions and Extraordinary
not included in the definition of a small Mexico-licensed drivers who transport Circumstances) are satisfied. This IFR is
entity. hazardous materials on an equal footing issued to ensure that the motor vehicle
Because good cause exists for issuing with U.S. drivers. Even if the total costs transportation of hazardous materials
an interim final rule and the agency did were $1.7 million as estimated, this cost between Canada and the United States
not publish a general notice of proposed would have no noticeable impact on and between Mexico and the United
rulemaking, this rule does not require a either trade or the U.S. economy. States meets U.S. laws, without
regulatory flexibility analysis. Although significant interruption. This IFR will
Unfunded Mandates Assessment
this rule does not require a regulatory not cause any change in the technical
The Unfunded Mandates Reform Act aspects of commercial transportation of
flexibility analysis, we will consider the
of 1995 is intended, among other things, hazardous materials across the northern
22 Wage rates are from the BLS Web site accessed to curb the practice of imposing and southern U.S. borders after August
on July 14, 2006. http://data.bls.gov/PDQ/ unfunded Federal mandates on State, 10, 2006.
outside.jsp?survey=cm. Occupation Code: 53–3032, local, and tribal governments. Title II of

Truck Drivers, Heavy and Tractor-Trailer, for a the Act requires each Federal agency to Energy Impact Analysis
mean rate of $17.05 and a fringe multiplier from
Transportation and Material Moving Occupations,
prepare a written statement assessing The energy impact of the action has
All Civilian; http://www.bls.gov/oes/current/ the effects of any Federal mandate in a been assessed in accordance with the
oes_nat.htm#b53-0000. proposed or final agency rule that may Energy Policy and Conservation Act
(EPCA), Pub. L. 94–163, as amended (42 Subpart C—Transportation of individual to transport hazardous
U.S.C. 6362). We have determined that Hazardous Materials to and Within the materials in commerce, which must be
this rulemaking is not a major regulatory United States by Land Modes indicated on the individual’s
action under the provisions of the commercial driver’s license.
EPCA. ■ 2. Revise the heading for Subpart C as
set forth above. (c) Background check required. A
List of Subjects in 49 CFR Part 1572 ■ 3. Revise § 1572.201 to read as commercial vehicle driver who is
follows: licensed by Canada or Mexico may not
Commercial drivers license, Criminal transport hazardous materials into or
history background checks, Explosives, § 1572.201 Transportation of hazardous within the United States unless the
Hazardous materials, Motor carriers, materials via commercial motor vehicle
from Canada or Mexico to and within the
driver has undergone a background
Motor vehicle carriers, Security United States. check similar to the one required of
measures, Security threat assessment. (a) Applicability. This section applies U.S.-licensed operators with a
to commercial motor vehicle drivers hazardous materials endorsement
The Amendments
licensed by Canada or Mexico. (HME) on a commercial drivers license,
■ For the reasons set forth in the (b) Terms used in this section. For as prescribed in § 1572.5.
preamble, the Transportation Security purposes of this section: (1) A commercial vehicle driver who
Administration amends Chapter XII of FAST means Free and Secure Trade holds a current Free and Secure Trade
Title 49, Code of Federal Regulations, by program of the Bureau of Customs and (FAST) program card satisfies the
amending part 1572 as follows: Border Protection (CBP), a cooperative requirements of this section.
effort between CBP and the governments
of Canada and Mexico to coordinate (2) Commercial vehicle drivers who
PART 1572—CREDENTIALING AND wish to apply for a FAST program card
BACKGROUND CHECKS FOR LAND processes for the clearance of
commercial shipments at the border. must contact the FAST Commercial
TRANSPORTATION SECURITY Driver Program, Bureau of Customs and
Hazardous materials means any
material that has been designated as Border Protection (CBP), Department of
■ 1. The authority citation for part 1572
hazardous under 49 U.S.C. 5103 and is Homeland Security.
continues to read as follows:
required to be placarded under subpart Issued in Arlington, Virginia, on August 2,
Authority: 49 U.S.C. 114, 5103a, 40113, F of 49 CFR part 172 or any quantity of 2006.
and 46105; 18 U.S.C. 842, 845; Sec. 520, Pub. a material listed as a select agent or
L. 108–90, 117 Stat. 1156 (6 U.S.C. 469). Kip Hawley,
toxin in 42 CFR part 73. See 49 CFR
383.5. Assistant Secretary.
Hazardous materials endorsement [FR Doc. 06–6754 Filed 8–3–06; 1:57 pm]
(HME) means the authorization for an BILLING CODE 9110–05–P

Rule: Maritime and Land Transportation Security: Drivers Licensed by Canada or Mexico Transporting Hazardous Materials To and Within U.S.

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49 CFR Part 1572

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

agent or toxin in 42 CFR part 73 5 49 CFR part 172. in 49 CFR 1572.201.

COMPARISON OF HME AND FAST BACKGROUND CHECKS

COMPARISON OF HME AND FAST BACKGROUND CHECKS—Continued

an unfunded mandate on State, local, or by the Canadian government. Upon www.cbp.gov/linkhandler/cgov/import/

outside.jsp?survey=cm. Occupation Code: 53–3032, local, and tribal governments. Title II of

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