[Federal Register Volume 68, Number 25 (Thursday, February 6, 2003)]
[Rules and Regulations]
[Pages 6083-6088]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3005]


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DEPARTMENT OF TRANSPORTATION

Transportation Security Administration

49 CFR Parts 1570 and 1572

[Docket No. TSA-2003-14421]
RIN 2110-AA18


Transportation of Explosives From Canada to the United States Via 
Commercial Motor Vehicle and Railroad Carrier

AGENCY: Transportation Security Administration (TSA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule addresses security issues regarding 
transportation of explosives by commercial motor vehicles and 
railroads. It establishes temporary requirements that all motor 
carriers, motor private carriers, and railroad carriers not using 
United States citizens or lawful permanent resident aliens as drivers 
or railroad crews to transport explosives to the United States must 
meet during the period while DOT develops the standards that will apply 
on a more permanent basis.

DATES: Effective on February 3, 2003. Submit comments by March 10, 
2003.

ADDRESSES: Address your comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. You must identify the docket number TSA-
2003-14421 at the beginning of your comments, and you should submit two 
copies of your comments. If you wish to receive confirmation that TSA 
received your comments, include a self-addressed, stamped postcard.
    You may also submit comments through the Internet to http://dms.dot.gov. You may review the public docket containing comments to 
these regulations in person in the Dockets Office between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays. The Dockets 
Office is on the plaza level of the NASSIF Building at the Department 
of Transportation at the above address. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Benjamin Klein, Office of the Chief 
Counsel, Transportation Security Administration, 400 Seventh Street, 
SW., Washington, DC 20590-0001; telephone 202-385-1262; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

Comments Invited

    This final rule is being adopted without prior notice and prior 
public comment. However, the Regulatory Policies and Procedures of the 
Department of Transportation (DOT) (44 FR 1134; February 26, 1979) 
provide that, to the maximum extent possible, operating administrations 
within DOT should provide an opportunity for public comment on 
regulations issued without prior notice. Accordingly, interested 
persons are invited to participate in this rulemaking by submitting 
written data, views, or arguments. We also invite comments relating to 
the economic, environmental, energy, or federalism impacts that might 
result from adopting this amendment. The most helpful comments 
reference a specific portion of the rule, explain the reason for any 
recommended change, and include supporting data. See ADDRESSES above 
for information on how to submit comments.
    We will file in the docket all comments we receive, as well as a 
report summarizing each substantive public contact with TSA personnel 
concerning this rulemaking. The docket is available for public 
inspection before and after the comment closing date.
    We will consider all comments we receive on or before the closing 
date for comments. We will consider comments filed late if it is 
possible to do so without incurring expense or delay. We may change 
these rules in light of the comments we receive.

Electronic Access

    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.access.gpo.gov/su_docs/aces/aces140.html; or
    (3) Visiting the TSA's Laws and Regulations web page at http://www.tsa.dot.gov/public/index.jsp.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT.

Background

    The Safe Explosives Act, Public Law 107-296 (116 Stat. 2280, 11/25/
2002), sections 1121-1123, amended section 842(i) of Title 18, United 
States Code (U.S.C.) by adding several categories to the list of 
persons who may not lawfully ``ship or transport any explosive in 
interstate or foreign commerce'' or ``receive or possess any explosive 
which

[[Page 6084]]

has been shipped or transported in interstate or foreign commerce.'' 
The Act added three new categories to the list of prohibited persons: 
aliens, persons dishonorably discharged from the armed forces, and 
former citizens of the United States who have renounced their 
citizenship. Under the Act, ``alien'' does not include lawful permanent 
resident aliens of the United States as defined in 8 U.S.C. 1101(a)(2). 
See 18 U.S.C. 845(a).
    Section 845(a)(1) of Title 18, United States Code, provides in part 
that any aspect of the transportation of explosive materials that is 
regulated by DOT and that pertains to safety is exempt from Sec.  
842(i). Therefore, to the extent that DOT rules address matters in 
Sec.  842(i) (such as by addressing the security risk posed by aliens), 
Sec.  842(i) does not apply.
    The Department of Transportation has statutory responsibility for 
the safe and secure transportation of hazardous materials, including 
explosives, in commerce. See 49 U.S.C. 5101 et seq. The Secretary of 
Transportation has delegated to RSPA, an agency within DOT, the 
authority to issue regulations governing the safe, including secure, 
transportation of hazardous materials (including explosives) in 
commerce. TSA has responsibility for security in all modes of 
transportation regulated under DOT, including coordinating 
countermeasures with appropriate departments, agencies, and 
instrumentalities of the United States government, and ensuring the 
adequacy of security measures for the transportation of cargo. 49 
U.S.C. 114(d), (f)(4), (f)(10). Because this rule addresses the secure 
transportation of explosives in commerce, TSA has coordinated this rule 
with RSPA.
    In addition, DOT works closely with other U.S. Government agencies 
to facilitate efficient international commerce, especially across our 
borders. Since the passage of the Safe Explosives Act, we have had 
extensive consultations with the Bureau of Alcohol, Tobacco and 
Firearms, the United States Customs Service, other interested U.S. 
Government agencies, and representatives of the Government of Canada.
    DOT has evaluated the risk to security posed by aliens who 
transport commercial shipments of explosives into the United States 
from Canada and has determined that the requirements adopted in this 
Interim Final Rule are sufficient to mitigate that risk at this time. 
The focus of this rule is solely on the addition of aliens to the list 
of prohibited persons. This rulemaking only addresses the narrow issue 
regarding transportation of explosives by commercial motor vehicle 
carriers and railroad carriers and their drivers and train crew members 
in commerce crossing the border from Canada into the United States. It 
is intended as a temporary measure until the completion of 
consultations with Canada and other U.S. Government agencies, and 
issuance of more comprehensive regulations requiring background checks 
of persons transporting hazardous materials in commerce.
    DOT is consulting with the Government of Mexico regarding a 
comparable regulatory regime for the transportation of explosives from 
Mexico to the United States.

USA PATRIOT Act and Related Rulemakings

    Section 1012 of the Uniting and Strengthening America by Providing 
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 
2001 (USA PATRIOT Act), Public Law 107-56 (115 Stat. 272, 10/26/2001), 
provides that the States must submit to the Department of Justice (DOJ) 
for a background records check (including a check of criminal, 
Immigration and Naturalization Service (INS), and intelligence 
databases) the names of all commercial motor vehicle drivers applying 
for a hazardous materials endorsement to a commercial drivers license 
(CDL). DOJ is directed to report the results of the background check to 
the Department of Transportation, which will decide whether the driver 
poses ``a security risk warranting denial of the license.'' DOT plans 
to issue regulations in the near future to implement these provisions. 
The long-term solution will involve background checks of all persons 
transporting hazardous materials in commerce to help ensure that they 
do not pose a security risk to the American public.
    DOT is considering a number of other regulatory actions to address 
the issue of security in the transportation of hazardous materials. For 
example, the Research and Special Programs Administration (RSPA) 
published a notice of proposed rulemaking (NPRM) on May 2, 2002, under 
Docket HM-232, to enhance the security of hazardous materials in 
transportation (67 FR 22028). The NPRM proposed to require shippers and 
carriers of hazardous material shipments that require placarding (which 
includes explosives) to adopt and implement security plans that would 
include measures to address personnel security, unauthorized access, 
and en route security vulnerabilities. As part of its security plan, a 
company would have to implement measures to confirm information 
provided by job applicants hired for positions that involve access to 
and handling of the hazardous materials. The NPRM is expected to be the 
first step in what will likely be a series of rulemakings that will 
examine the necessity for imposing more stringent security requirements 
on certain materials or classes of materials deemed to be significant 
security threats. RSPA expects to publish a final rule under Docket HM-
232 in the very near future.

The Interim Final Rule

    TSA is establishing temporary requirements applicable to motor 
carriers, motor private carriers, and railroad carriers transporting 
explosives in commerce from Canada to the United States using drivers 
and train crew members who are not United States Citizens or lawful 
permanent resident aliens. These interim rules will be effective only 
during the period while DOT develops the standards that will apply on a 
more permanent basis.
    This rule creates a new subchapter in TSA regulations, Subchapter 
D, which will eventually contain a number of rules covering maritime 
and land transportation security. This rule also creates new part 1572, 
which will contain rules related to credentialing and background checks 
for maritime and land transportation security.

Section 1572.9 Transportation of Explosives From Canada to the United 
States via Commercial Motor Vehicle

    New Sec.  1572.9 covers transportation of explosives from Canada to 
the United States via commercial motor vehicle. This section provides 
procedures to ensure that the carrier, offeror of explosives, and 
driver of the motor vehicle are properly checked.
    Under this section carriers must ensure that they are known 
carriers, and that their offeror of explosives and their driver are 
known before crossing the border into the United States. They will 
become known by submitting specified information to Transport Canada in 
advance. Transport Canada is an agency within the Government of Canada 
with responsibility to oversee safety and security of transportation. 
Transport Canada will conduct checks to ensure that the carrier and the 
shipper are legitimate entities and authorized to do business in 
Canada. Transport Canada will also check the drivers to ensure there 
are no known security concerns. Transport Canada will forward to TSA 
the information on the carriers, offerors, and drivers that it has 
determined to be known. TSA will make independent additional checks 
with such other U.S.

[[Page 6085]]

government agencies as may be appropriate and will forward the list of 
acceptable carriers, offerors, drivers, and train crew members to the 
United States Customs Service. TSA will not include on the list of 
known carriers, offerors, drivers, or train crew members any whose 
background check indicates that they are not truly known (such as they 
are not truly authorized to conduct business in Canada) or may present 
a security risk.
    The United States Customs Service will conduct a number of checks 
at the border. It will check the driver's commercial driver's license, 
as well as shipping papers and other required documentation. The 
Customs Service will determine whether the carrier, offeror, driver, 
and train crew member are on the list of known persons. If a carrier 
attempts to enter the United States without having complied with this 
section, the Customs Service will deny entry of the explosives and take 
other appropriate action. The Customs Service may allow the driver or 
train crew member to return to Canada, hold the shipment until the 
carrier has corrected the problem (such as by providing a driver or 
train crew member who is on the list), or take whatever action the 
Customs Service deems appropriate under other laws that may apply.
    If a person violates TSA regulations, including those adopted here, 
TSA may take civil enforcement action if appropriate, including seeking 
a civil penalty of up to $10,000 for each violation. See 49 U.S.C. 
46301(a). TSA's enforcement procedures are in 49 CFR part 1503. In 
appropriate cases violations will be referred for criminal 
investigation and prosecution.
    It should be noted that some U.S. citizens and lawful permanent 
resident aliens have Canadian commercial driver's licenses or are train 
crew members on operations subject to this rulemaking. Because such 
persons are not required to comply with this rule, they may not appear 
on the list of known drivers or train crew members provided by 
Transport Canada. To show to the Customs Service that they are eligible 
to serve as drivers, they may provide a valid U.S. passport or other 
U.S. Federal or State identification acceptable to the Customs Service.
    Once a carrier, offeror, or driver is on the known list, they do 
not need to be submit their names again under this rule. Transport 
Canada and TSA will conduct additional checks on these persons as 
appropriate and will remove names from the list as necessary.

Section 1572.11 Transportation of Explosives From Canada to the United 
States via Railroad Carrier

    New section 1572.11 covers transportation of explosives from Canada 
to the United States via railroad carrier. It closely parallels Sec.  
1572.9, with changes to reflect that crews rather than individual 
drivers operate trains and that the Customs Service sometimes directs 
trains to inspection points that are not precisely at the border.
Transportation by Maritime and Aviation
    This rule does not cover transportation by maritime or aviation. 
The Coast Guard has extensive regulations relating to the security of 
transportation of explosives by aliens designed to discover and prevent 
entry to ports and places in the United States of those who present a 
threat to the United States on ships carrying explosives. See 33 CFR 
160.T208 and 33 CFR part 6, and 33 CFR 160.111(a). DOT has determined 
that there is no need at this time to add further requirements. 
Similarly, TSA has extensive security requirements covering the 
security of flight crew and cargo on both foreign and U.S. air 
carriers. See 49 CFR parts 1544 and 1546. These requirements include 
criminal history checks and checks against other Federal databases of 
the flight crewmembers to ensure that they do not pose a security 
threat. DOT has determined that there is no need to add further 
requirements at this time. DOT has assessed the security risk posed by 
aliens transporting explosives by water and air and has determined that 
existing regulations are sufficient to mitigate the risk. Accordingly, 
these regulations exempt aliens transporting explosives in the United 
States by water and by air from liability for transportation offenses 
under 18 U.S.C. 845(a)(1).

Good Cause for Immediate Adoption

    This action is being taken without providing the opportunity for 
notice and comment, and it provides for immediate effectiveness upon 
adoption. Under the Administrative Procedure Act (APA) an agency may 
forgo notice and comment rulemaking when ``the agency for good cause 
finds * * * that notice and public procedures thereon are 
impracticable, unnecessary, or contrary to the public interest.'' 5 
U.S.C. 553(b). TSA finds good cause under 5 U.S.C. 553 that notice and 
comment are impracticable and contrary to the public interest. This 
rule is designed to address an unanticipated impact of the Safe 
Explosives Act on the routine transportation of explosives in commerce 
across the U.S.-Canadian border. This rule has been developed after 
consultation with representatives of the Canadian government and the 
trucking and railroad industry.
    Further, TSA has determined that this action is necessary to 
minimize security threats and potential security vulnerabilities. TSA 
and other federal security organizations have been concerned about the 
potential use of explosives to carry out terrorist acts in the United 
States since September 11, 2001. This rule provides additional 
assurance that explosives being carried into this country will be 
carried by authorized persons.
    Further, the Under Secretary finds that good cause exists under 5 
U.S.C. 553(d) for making this final rule effective immediately upon 
publication. Without an immediate effective date, there is a potential 
for a serious disruption of trans-border transportation.

Economic Analyses

    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order (E.O.) 12866 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 requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, the Office of Management and Budget directs agencies to assess 
the effect of regulatory changes on international trade. Fourth, the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) 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 and DOT Regulatory Policies and Procedures

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), 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. The Order defines a ``significant regulatory action'' 
as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or

[[Page 6086]]

adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This rule was reviewed under Executive Order 12866. It is 
significant within the meaning of the DOT's Regulatory Policies and 
Procedures. No regulatory analysis or evaluation accompanies this rule. 
When a rulemaking action does not include publication of a notice of 
proposed rulemaking, as is the case in this proceeding, economic 
assessments are not required for the final rule.
    TSA recognizes that this rule will impose costs on affected 
carriers in Canada. These costs will stem from ensuring that the 
carrier, offeror, drivers, and train crew members are known to 
Transport Canada and to TSA. However, given the Act and the current 
security threat, TSA believes it is necessary to require these enhanced 
security measures, to avoid the potential of a serious disruption of 
trans-border transportation and to provide additional assurance that 
persons who transport explosives are authorized to do so. TSA will 
assess the costs and benefits of the rule as soon as possible and 
include the analysis in the docket of this rulemaking.

Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
No regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended the Regulatory 
Flexibility Act to require Federal agencies to provide a statement of 
the factual basis for certifying that a rule will not have a 
significant economic impact on a substantial number of small entities.
    TSA recognizes that this rule will impose costs on affected foreign 
carriers, offerors, drivers, and train crew members, and that some of 
these carriers are small businesses. However, given the Act and the 
current security threat, TSA believes it is necessary to require these 
enhanced security measures. In any event, when a rulemaking action does 
not include publication of a notice of proposed rulemaking, as is the 
case in this proceeding, economic assessments are not required for the 
final rule.

Unfunded Mandates Determination

    The Unfunded Mandates Reform Act of 1995 (the Act), enacted as 
Public Law 104-4 on March 22, 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 final rule does not contain such a mandate. Therefore, the 
requirements of Title II of the Unfunded Mandates Reform Act of 1995 do 
not apply.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the TSA consider the impact of paperwork and other information 
collection burdens imposed on the public. A person is not required to 
respond to a collection of information unless it displays a current 
valid Office of Management and Budget (OMB) control number.
    Under this rule, the Canadian Government will gather information 
from their carriers and railroads and share it with TSA as a part of 
Government-to-Government consultation and coordination. Persons 
operating from Canada transporting explosives across the border 
pursuant to this rule will not be subject to additional paperwork 
burdens. The information that they will present to Customs is already 
required under other international, statutory, and regulatory 
provisions. We note that this rule is an interim measure that must be 
issued quickly to prevent disruption of commerce. We are working 
closely with OMB to obtain expedited clearance under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3507) for the Government-to-Government 
paperwork collection.

International Trade Impact Statement

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety and security, 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. DOT has assessed the potential effect of this 
rulemaking in consultation with the Government of Canada, and has 
determined that it will not have a significant impact on foreign 
commerce and, therefore, has no effect on any trade-sensitive activity.

Executive Order 13132, Federalism

    TSA has analyzed this 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 for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

Energy Impact

    The energy impact of this final rule has been assessed in 
accordance with the Energy Policy and Conservation Act (EPCA) Public 
Law 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

    Motor carriers, Motor vehicle carriers, Railroads, Security 
measures.

The Interim Final Rule

    In consideration of the foregoing, the Transportation Security 
Administration amends Chapter XII of Title 49, Code of Federal 
Regulations, by adding a new subchapter D to read as follows:

[[Page 6087]]

SUBCHAPTER D--MARITIME AND LAND TRANSPORTATION SECURITY

PART 1570--[Reserved]

PART 1572--CREDENTIALING AND BACKGROUND CHECKS FOR MARITIME AND 
LAND TRANSPORTATION SECURITY

Sec.
1572.1 Applicability.
1572.9 Transportation of explosives from Canada to the United States 
via commercial motor vehicle.
1572.11 Transportation of explosives from Canada to the United 
States via railroad carrier.

    Authority: 49 U.S.C. 114, 40113, 46105.


Sec.  1572.1  Applicability.

    This part prescribes regulations for credentialing and background 
checks in specified uses for maritime and land security.


Sec.  1572.9  Transportation of explosives from Canada to the United 
States via commercial motor vehicle.

    (a) Applicability. This section applies to carriers that carry 
explosives from Canada to the United States using a driver who is not a 
United States citizen or lawful permanent resident alien of the United 
States.
    (b) Terms used in this section. For purposes of this section:
    Carrier means any ``motor carrier'' or ``motor private carrier'' as 
defined in 49 U.S.C. 13102(12) and (13), respectively.
    Customs Service means the United States Customs Service.
    Explosive means a material that has been examined by the Associate 
Administrator for Hazardous Materials Safety, Research and Special 
Programs Administration, in accordance with 49 CFR 173.56, and 
determined to meet the definition for a Class 1 material in 49 CFR 
173.50.
    Known carrier means a person that has been determined by the 
Governments of Canada and the United States to be a legitimate business 
operating in accordance with all applicable laws and regulations 
governing the transportation of explosives.
    Known driver means a driver of a motor vehicle who has been 
determined by the Governments of Canada and the United States to 
present no known security concern.
    Known offeror means an offeror that has been determined by the 
Governments of Canada and the United States to be a legitimate business 
operating in accordance with all applicable laws and regulations 
governing the transportation of explosives.
    Lawful permanent resident alien means a lawful permanent resident 
alien of the United States as defined by 8 U.S.C. 1101(a)(2).
    Offeror means the person offering a shipment to the carrier for 
transportation from Canada to the United States, and may also be known 
as the ``consignor'' in Canada.
    (c) Prior approval of carrier, offeror, and driver. (1) No carrier 
may transport in commerce any explosive into the United States from 
Canada via motor vehicle if the driver of the vehicle is a not a United 
States citizen or lawful permanent resident alien unless the carrier, 
offeror, and driver are identified on a TSA list as a known carrier, 
known offeror, and known driver, respectively.
    (2) The carrier must ensure that it, its offeror, and its driver 
have been determined to be a known carrier, known offeror, and known 
driver, respectively. If any has not been so determined, the carrier 
must submit the following information to Transport Canada:
    (i) The carrier must provide its:
    (A) Official name;
    (B) Business number;
    (C) Any trade names; and
    (D) Address.
    (ii) The following information about any offeror of explosives 
whose shipments it will carry:
    (A) Official name;
    (B) Business number; and
    (C) Address.
    (iii) The following information about any driver the carrier may 
use to transport explosives into the United States from Canada who is 
neither a United States citizen nor lawful permanent resident alien of 
the United States:
    (A) Full name;
    (B) Canada Commercial Driver's License number; and
    (C) Both current and most recent prior residential addresses.
    (3) Transport Canada will determine that the carrier and offeror 
are legitimately doing business in Canada and will also determine that 
the drivers are properly licensed and present no known problems for 
purposes of this section. Transport Canada will notify TSA of these 
determinations by forwarding to TSA lists of known carriers, offerors, 
and drivers and their identifying information.
    (4) TSA will update and maintain the list of known carriers, 
offerors, and drivers and forward the list to the Customs Service.
    (5) Once included on the list, the carriers, offerors, and drivers 
need not obtain prior approval for future transport of explosives under 
this section.
    (d) TSA checks. TSA may periodically check the data on the 
carriers, offerors and drivers to confirm their continued eligibility 
and may remove from the list any that TSA determines is not known or is 
a threat to security.
    (e) At the border--(1) Driver who is not a United States citizen or 
lawful permanent resident alien. Upon arrival at the border, and prior 
to entry into the United States, the driver must provide a valid 
Canadian commercial driver's license to the Customs Service.
    (2) Driver who is a United States citizen or lawful permanent 
resident alien. If the Customs Service cannot verify that the driver is 
on the list, and if the driver is a United States citizen or lawful 
permanent resident alien, the driver may be cleared by the Customs 
Service upon providing:
    (i) A valid United States passport; or
    (ii) One or more other document(s) including a form of United 
States federal or state government-issued identification with 
photograph, acceptable to the Customs Service.
    (3) Compliance. If a carrier attempts to enter the United States 
without having complied with this section, the Customs Service will 
deny entry of the explosives and may take other appropriate action.


Sec.  1572.11  Transportation of explosives from Canada to the United 
States via railroad carrier.

    (a) Applicability. This section applies to railroad carriers that 
carry explosives from Canada to the United States using a train crew 
member who is not a United States citizen or lawful permanent resident 
alien of the United States.
    (b) Terms under this section. For purposes of this section:
    Customs Service means the United States Customs Service.
    Explosive means a material that has been examined by the Associate 
Administrator for Hazardous Materials Safety, Research and Special 
Programs Administration, in accordance with 49 CFR 173.56, and 
determined to meet the definition for a Class 1 material in 49 CFR 
173.50.
    Known railroad carrier means a person that has been determined by 
the Governments of Canada and the United States to be a legitimate 
business operating in accordance with all applicable laws and 
regulations governing the transportation of explosives.
    Known offeror means an offeror that has been determined by the 
Governments of Canada and the United States to be a legitimate business 
operating in accordance with all

[[Page 6088]]

applicable laws and regulations governing the transportation of 
explosives.
    Known train crew member means an individual used to transport 
explosives from Canada to the United States who has been determined by 
the Governments of Canada and the United States to present no known 
security concern.
    Lawful permanent resident alien means a lawful permanent resident 
alien of the United States as defined by 8 U.S.C. 1101(a)(2).
    Offeror means the person offering a shipment to the railroad 
carrier for transportation from Canada to the United States, and may 
also be known as the ``consignor'' in Canada.
    Railroad carrier means ``railroad carrier'' as defined in 49 U.S.C. 
20102.
    (c) Prior approval of railroad carrier, offeror, and train crew 
member. (1) No railroad carrier may transport in commerce any explosive 
into the United States from Canada via a train operated by a crew 
member who is not a United States citizen or lawful permanent resident 
alien unless the railroad carrier, offeror, and train crew member are 
identified on a TSA list as a known railroad carrier, known offeror, 
and known train crew member, respectively.
    (2) The railroad carrier must ensure that it, its offeror, and each 
of its crew members have been determined to be a known railroad 
carrier, known offeror, and known train crew member, respectively. If 
any has not been so determined, the railroad carrier must submit the 
following information to Transport Canada:
    (i) The railroad carrier must provide its:
    (A) Official name;
    (B) Business number;
    (C) Any trade names; and
    (D) Address.
    (ii) The following information about any offeror of explosives 
whose shipments it will carry:
    (A) Official name;
    (B) Business number; and
    (C) Address.
    (iii) The following information about any train crew member the 
railroad carrier may use to transport explosives into the United States 
from Canada who is neither a United States citizen nor lawful permanent 
resident alien:
    (A) Full name; and
    (B) Both current and most recent prior residential addresses.
    (3) Transport Canada will determine that the railroad carrier and 
offeror are legitimately doing business in Canada and will also 
determine that the train crew members present no known problems for 
purposes of this section. Transport Canada will notify TSA of these 
determinations by forwarding to TSA lists of known railroad carriers, 
offerors, and train crew members and their identifying information.
    (4) TSA will update and maintain the list of known railroad 
carriers, offerors, and train crew members and forward the list to the 
Customs Service.
    (5) Once included on the list, the railroad carriers, offerors, and 
train crew members need not obtain prior approval for future transport 
of explosives under this section.
    (d) TSA checks. TSA may periodically check the data on the railroad 
carriers, offerors, and train crew members to confirm their continued 
eligibility and may remove from the list any that TSA determines is not 
known or is a threat to security.
    (e) At the border--(1) Train crew members who are not United States 
citizens or lawful permanent resident aliens. Upon arrival at a point 
designated by the Customs Service for inspection of trains crossing 
into the United States, the train crew members of a train transporting 
explosives must provide sufficient identification to the Customs 
Service to enable that agency to determine if each crew member is on 
the list of known train crew members maintained by TSA.
    (2) Train crew members who are United States citizens or lawful 
permanent resident aliens. If the Customs Service cannot verify that 
the crew member is on the list and the crew member is a United States 
citizen or lawful permanent resident alien, the crew member may be 
cleared by the Customs Service upon providing:
    (i) A valid United States passport; or
    (ii) One or more other document(s) including a form of United 
States federal or state government-issued identification with 
photograph, acceptable to the Customs Service.
    (3) Compliance. If a carrier attempts to enter the United States 
without having complied with this section, the Customs Service will 
deny entry of the explosives and may take other appropriate action.

    Issued in Washington, DC, on February 3, 2003.
Stephen J. McHale,
Deputy Administrator.
[FR Doc. 03-3005 Filed 2-3-03; 5:00 pm]
BILLING CODE 4910-62-P