[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35343-35349]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-14426]
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DEPARTMENT OF HOMELAND SECURITY
Transportation Security Administration
49 CFR Part 1572
[Docket No. TSA-2004-19605]
Provisions for Fees Related to Hazardous Materials Endorsements
and Transportation Worker Identification Credentials
AGENCY: Transportation Security Administration, DHS.
ACTION: Notice of proposed rulemaking (NPRM).
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SUMMARY: The Transportation Security Administration (TSA) has a
statutory obligation to recover its costs for conducting security
threat assessments (STAs) and credentialing for Hazardous Materials
Endorsements (HMEs) and Transportation Worker Identification
Credentials (TWICs). These fees reimburse TSA for the costs of
administering the programs. The proposed rule advises that future
revisions to fee schedules will be published in the Federal Register.
After public comments, TSA proposes to publish a final rule that
removes specific fee amounts from 49 CFR 1572.403 (state collection of
HME fee),
[[Page 35344]]
1572.405 (TSA collection of HME fee), and 1572.501 (collection of TWIC
fee) to enable TSA to have necessary flexibility to lower or increase
fees as necessary to meet the statutory obligation to recover its
costs.
DATES: Submit comments by July 30, 2012.
ADDRESSES: You may submit comments, identified by the TSA docket number
to this rulemaking, to the Federal Docket Management System (FDMS), a
government-wide, electronic docket management system, using any one of
the following methods:
Electronically: You may submit comments through the Federal
eRulemaking portal at http://www.regulations.gov. Follow the online
instructions for submitting comments.
Mail, In Person, or Fax: Address, hand-deliver, or fax your written
comments to the Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001; fax (202) 493-2251. The
Department of Transportation (DOT), which maintains and processes TSA's
official regulatory dockets, will scan the submission and post it to
FDMS.
See SUPPLEMENTARY INFORMATION for format and other information
about comment submissions.
FOR FURTHER INFORMATION CONTACT: Carolyn Mitchell, Office of Security
Policy and Industry Engagement, Transportation Security Administration,
601 South 12th Street, Arlington, VA 20598-6002; telephone (571) 227-
2372; email [email protected].
For legal questions: Traci Klemm, Office of Chief Counsel, TSA-2,
Transportation Security Administration, 601 South 12th Street,
Arlington, VA 20598-6002; telephone (571) 227-3596; facsimile (571)
227-1378; email [email protected].
SUPPLEMENTARY INFORMATION:
Comments Invited
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 this rulemaking action. See ADDRESSES above for
information on where to submit comments.
With each comment, please identify the docket number at the
beginning of your comments. TSA encourages commenters to provide their
names and addresses. 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 an
unbound format, no larger than 8.5 by 11 inches, suitable for copying
and electronic filing.
If you would like 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 all comments to our docket address, as well as items
sent to the address or email under FOR FURTHER INFORMATION CONTACT, in
the public docket, except for comments containing confidential
information and sensitive security information (SSI).\1\ Should you
wish your personally identifiable information redacted prior to filing
in the docket, please so state. TSA will consider all comments that are
in the docket 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.
TSA will not place comments containing SSI in the public docket and
will handle them in accordance with applicable safeguards and
restrictions on access. TSA will hold documents containing SSI,
confidential business information, or trade secrets in a separate file
to which the public does not have access, and place a note in the
public docket explaining that commenters have submitted such documents.
TSA may include a redacted version of the comment in the public docket.
If an individual requests to examine or copy information that is not in
the public docket, 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 in any of our dockets by the name of the individual who
submitted the comment (or signed the comment, if an association,
business, labor union, etc., submitted the comment). You may review the
applicable Privacy Act Statement published in the Federal Register on
April 11, 2000 (65 FR 19477) and modified on January 17, 2008 (73 FR
3316).
You may review TSA's electronic public docket on the Internet at
http://www.regulations.gov. In addition, DOT's Docket Management
Facility provides a physical facility, staff, equipment, and assistance
to the public. To obtain assistance or to review comments in TSA's
public docket, you may visit this facility between 9:00 a.m. to 5:00
p.m., Monday through Friday, excluding legal holidays, or call (202)
366-9826. This docket operations facility is located in the West
Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue SE.,
Washington, DC 20590.
Availability of Rulemaking Document
You can get an electronic copy using the Internet by--
(1) Searching the electronic Federal Docket Management System
(FDMS) Web page at http://www.regulations.gov;
(2) Accessing the Government Printing Office's Web page at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR to view
the daily published Federal Register edition; or accessing the ``Search
the Federal Register by Citation'' in the ``Related Resources'' column
on the left, if you need to do a Simple or Advanced search for
information, such as a type of document that crosses multiple agencies
or dates; 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
[[Page 35345]]
section. Make sure to identify the docket number of this rulemaking.
Abbreviations and Terms Used in This Document
CDL--Commercial Driver's License
CHRC--Criminal History Records Check
FBI--Federal Bureau of Investigation
HME--Hazardous Materials Endorsement
IFR--Interim Final Rule
MTSA--Maritime Transportation Security Act
STA--Security Threat Assessment
TWIC--Transportation Worker Identification Credential
Background
Approximately 2 million workers, including Coast Guard-credentialed
merchant mariners, port facility employees, longshore workers, truck
drivers, and others requiring unescorted access to secure areas of
maritime facilities and vessels regulated under the Maritime
Transportation Security Act (MTSA)\2\ must successfully complete an STA
and hold a TWIC in order to enter secure areas without an escort.\3\
TSA conducts the STA and issues the credential, and the Coast Guard
enforces the use of TWIC at MTSA-regulated facilities.
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\2\ See 46 U.S.C. 70105.
\3\ See 33 CFR 105.514. See also 72 FR 3492 (Jan. 25, 2007)
(TWIC and HME Final Rule).
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As part of the process for obtaining a TWIC, applicants must pay a
fee made up of three segments: Enrollment Segment, Full Card
Production/Security Threat Assessment Segment, and Federal Bureau of
Investigation (FBI) Segment.\4\ Most applicants pay the Standard TWIC
Fee, which includes all three segments. Applicants who have completed a
comparable threat assessment, such as the threat assessment TSA
conducts on commercial drivers with a HME, pay a reduced TWIC Fee.\5\
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\4\ See TWIC and HME Final Rule at 3506.
\5\ These applicants are not charged for the FBI Segment and pay
a reduced fee for the Full Card Production/Security Threat
Assessment Segment.
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In the TSA Hazardous Materials Endorsement Threat Assessment
Program (HME Program), TSA conducts an STA for any driver seeking to
obtain, renew, or transfer a hazardous materials endorsement (HME) on a
state-issued commercial driver's license (CDL). The program was
implemented to meet a statutory requirement that prohibits states from
issuing a license to transport hazardous materials (hazmat) in commerce
unless a determination has been made that the driver does not pose a
security risk. The Act further requires that the risk assessment
include checks of criminal history records, legal status, and relevant
international databases.\6\
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\6\ See 69 FR 68720 (Nov. 24, 2004) (HME Program IFR) and the
TWIC and HME Final Rule for more background information on the HME
Program.
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Applicants for an HME pay a fee to cover the (1) costs of
performing and adjudicating STAs, appeals, and waivers (Threat
Assessment Fee); (2) the costs of collecting and transmitting
fingerprints and applicant information (Information Collection Fee);
and (3) the fee charged by the FBI to perform a criminal history
records check (CHRC), called the FBI Fee.\7\ States that choose to
collect applicant information directly and submit it to TSA may charge
applicants a State fee for that service, and TSA has no regulatory
authority to control or determine that fee.
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\7\ 70 FR 2542 (Jan. 13, 2005) (HME Fees Final Rule).
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These TWIC and HME fee amounts, which reimburse TSA for the costs
of administering the programs, are specifically identified in current
49 CFR 1572.403 (state collection of HME fees), 1572.405 (TSA
collection of HME fees), and 1572.501 (collection of TWIC fee). After
receiving and evaluating public comments, TSA proposes to publish a
final rule that removes specific fee amounts for these programs in 49
CFR part 1572, and instead publish any revisions to fee schedules in
the Federal Register. These revisions to 49 CFR part 1572 will enable
TSA to meet its statutory mandate to recover the costs of these
programs, continue to fund these programs on an ongoing basis, provide
notice to affected stakeholders of any revisions to the fees, and meet
contractual obligations with vendors.
This proposed rule consists of an administrative revision.
Therefore, there are no industry costs associated with the proposal.
TSA costs for implementing the proposed rule would consist of
administrative costs largely covered by current operations and
therefore considered de minimis.
Legal Authority To Collect Fees
MTSA required DHS to issue regulations to prevent individuals from
entering secure areas of vessels or MTSA-regulated port facilities
unless such individuals undergo a successful STA and hold TWICs. In
addition, nearly all credentialed merchant mariners are required to
hold these transportation security cards.\8\ MTSA also required DHS to
establish a waiver and appeals process for persons found to be
ineligible for the required transportation security card.\9\
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\8\ As noted in the Fall 2011 regulatory agenda, the Coast Guard
is currently revising its merchant mariner credentialing regulations
to implement changes made by section 809 of the Coast Guard
Authorization Act of 2010, codified at 46 U.S.C. 70105(b)(2), which
reduces the population of mariners who are required to obtain and
hold a valid Transportation Worker Identification Credential (TWIC).
\9\ See sec. 105 of MTSA (Pub. L. 107-295, 116 Stat. 2064
(November 25, 2002)), codified at 46 U.S.C. 70105, as amended by the
Security and Accountability for Every Port Act of 2006 (SAFE Port
Act), Public Law 109-347 (October 13, 2006).
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Under 49 U.S.C. 5103a, a State is prohibited from issuing or
renewing a commercial driver's license (CDL) unless the Secretary of
Homeland Security has first determined that the driver does not pose a
security threat warranting denial of the HME.\10\ HME program
regulations require States to choose between two fingerprint collection
options: (1) the State collects and transmits the fingerprints and
applicant information of drivers who apply to renew or obtain an HME;
or (2) the State chooses to have a TSA agent to collect and transmit
the fingerprints and applicant information of such drivers.\11\ Under
the regulations, States were required to notify TSA in writing of their
choice by December 27, 2004, and are required to maintain that choice
for at least three years.
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\10\ Public Law 107-56, 115 Stat. 272 (Oct. 25, 2001) as updated
by Public Law 110-244, SAFETEA-LU Technical Corrections Act of 2008
(June 6, 2008), codified at 49 U.S.C. 5103a. Pursuant to DHS
Delegation Number 7060.2, the Secretary delegated to the
Administrator, subject to the Secretary's guidance and control, the
authority vested in the Secretary with respect to TSA.
\11\ See 49 CFR 1572.13. For more background information on the
HME program, see, HME Program IFR as amended by the TWIC and HME
Final Rule.
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Congress directed TSA to collect user fees to cover the costs of
its vetting and credentialing programs.\12\ TSA must collect fees to
pay for conducting or obtaining a CHRC; reviewing pertinent law
enforcement databases, and records of other governmental and
international agencies; reviewing and adjudicating requests for waivers
and appeals of TSA decisions; and any other costs related to conducting
the STA or providing a credential.
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\12\ See 6 U.S.C. 469.
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The statute requires that any fee collected must be available only
to pay for the costs incurred in providing services in connection with
performing the STA or providing the credential. The funds generated by
the fee do not have a limited period of time in which they must be
used; as fee revenue and service costs do not always match perfectly
for a given period, a program may need to carry over funding from one
fiscal year to the next to ensure that sufficient funds are available
to continue normal program operations.
[[Page 35346]]
TSA will comply with the The Chief Financial Officers (CFO) Act of
1990\13\ and Office of Management and Budget Circular A-25,\14\
regularly reviewing the fee program to ensure that fees correctly
recover, but do not exceed, the full cost of services and make
appropriate adjustments to the fees.
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\13\ Public Law 101-576 (codified at 31 U.S.C. 501 et seq.).
\14\ Available at http://www.whitehouse.gov/omb/circulars_a025.
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Current Fees
The following table identifies current fees for obtaining a TWIC
\15\ or HME.\16\
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\15\ See 49 CFR 1572.501(d).
\16\ See 49 CFR 1572.405.
Table 1--Current TWIC and HME Fees
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HME (collected by State) (49 CFR HME (collected by TSA or its agent)
TWIC (49 CFR 1572.501) 1572.403) (49 CFR 1572.405)
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Enrollment Segment or costs for $43.25................................ N/A................................... $38.00.
TSA or its agent to enroll
applicants.
STA Segment or costs for TSA to $72.00................................ $34.00................................ $35.00.
conduct security threat
assessment and produce cards.
FBI Segment or costs for Determined by FBI..................... Determined by FBI..................... Determined by FBI.
fingerprint identification
records.
Card Replacement................. $60.00................................ N/A................................... N/A.
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There are reduced fees for TWIC applicants if they have undergone a
comparable threat assessment.\17\ There are reduced fees for HME
applicants if they have undergone a comparable threat assessment (TWIC
STA) and the issuing State chooses to offer comparability to HME
applicants.
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\17\ See 49 CFR 1572.501(d).
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Standards and Guidelines Used To Calculate the Fees
TSA has a statutory obligation to recover its costs for the HME and
TWIC STA programs through user fees. These fees reimburse TSA for the
costs of administering the program. Pursuant to the general user fee
statute (31 U.S.C. 9701) and OMB circular A-25, TSA establishes user
fees after providing the public notice and an opportunity to comment on
the amount of the fee and the methodology TSA used to develop the fee
amount.
Methodology Used To Calculate the Fees
The methodology and considerations supporting TWIC fee
determinations are explained in detail in the preamble to the TWIC
Final Rule.\18\ The standard TWIC fee includes cost components
associated with enrollment and credential issuance; threat assessment
and adjudication including appeals and waivers; card production; TSA
program and systems costs; and the FBI fee to conduct the CHRC.
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\18\ The preambles to the HME Fees Final Rule and TWIC and HME
Final Rule included a discussion of the potential range of fees that
would be charged for each Segment of the applicable program. The
TWIC and HME Final Rule did not publish specific fees for each
Segment of the TWIC program because the contract for enrollment and
card production services was not finalized at that time. TSA
explained in the preamble that when the contract was executed and
final fee amounts determined, it would publish a notice in the
Federal Register announcing them. The final fee amounts were
published in March 2007. See 72 FR 13026 (March 20, 2007).
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The methodology and considerations supporting the HME fee
determinations were explained in detail in the preamble to the HME Fees
Final Rule.\19\ The standard HME fee includes cost components
associated with enrollment; threat assessment and adjudication
including appeals and waivers; TSA program and systems costs; and the
FBI fee to conduct the CHRC. States have the option to collect and
transmit an applicant's biographic and biometric information directly
to TSA, or the State may elect to use the TSA agent to collect and
transmit applicant biographic and biometric data. For States that
collect applicant data themselves, the enrollment component of the fee
may vary by State, but other costs (threat assessment and adjudication
costs, TSA program and system costs, FBI CHRC costs) will remain the
same regardless of State.
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\19\ Additional information can be found in the preamble to the
HME Fees NPRM (69 FR 65332 (Nov. 10, 2004)).
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In finalizing these methodologies, TSA considered comments from
individual commercial drivers; labor organizations; trucking industry
associations; State Departments of Motor Vehicles; associations
representing the agricultural, chemical, explosives, and petroleum
industries; and associations representing State governments.\20\ TSA
does not intend to change the methodologies for determining these fees.
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\20\ See discussion regarding comments received in the HME Fees
Final Rule, at 2545 et seq. and the TWIC and HME Final Rule at 2552
et seq.
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Factors That Could Affect Fees
As explained in the methodology discussion for the TWIC and HME
rules, there are certain factors that could cause changes in the fees,
such as inflation. Fees could also be affected by cost changes in
contractual services for enrollment, adjudication, credentialing and
other factors. For example, as explained in the methodologies proposed
for TWIC and HME fees,\21\ TSA uses contract services to support the
TWIC and HME STA programs, including enrollment services, adjudication
support, credentialing, technology development, technology operations
and maintenance, and customer service support. When the pertinent
contracts for services are amended or renegotiated,\22\ the fees may be
affected. Cost variations, such as changes in the number of
enrollments, could also affect fees.
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\21\ For TWIC, see the TWIC Program NPRM, 71 FR 29396, at 29426
et seq. (May 22, 2006), as further clarified by the TWIC and HME
Final Rule, at 3506 et seq. For HME, see the HME Fees NPRM, as
further clarified by the HME Fees Final Rule.
\22\ See, e.g., TSA published a request for proposal (RFP) in
June 2011 related to TSA enrollment services to support TWIC, HME
and other programs (Solicitation Number: HSTS-02-R-11TTC721). This
RFP is available at https://www.fbo.gov/index?s=opportunity&mode=form&id=baa296652eb065c4220b61156e07e289&tab=core&_cview=1.
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In addition, pursuant to the Chief Financial Officers Act of 1990
(Pub. L. 101-576, 104 Stat. 2838, Nov. 15, 1990), DHS/TSA is required
to review fees no less than every two years (31 U.S.C. 3512). Upon
review, if TSA finds that the fees are either too high (that is, total
fees exceed the total cost to provide the services) or too low (total
fees do not cover the total costs to provide the services) TSA must
adjust the fee.
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Changes to Existing Rules and Communication of Fee Schedules
As previously discussed, TSA has a statutory requirement to sustain
the HME and TWIC STA programs through user fees. Currently, TSA is at
risk of having to suspend issuance of credentials to meet HME or TWIC
program requirements or decreasing services until a rule change is
completed to reflect any changes in fee amounts. To address this issue,
TSA is proposing to revise existing regulations to ensure that TSA can
continue to fund these programs on an ongoing basis, provide notice to
affected stakeholders of any revisions to the fees, and meet
contractual obligations with vendors.
TSA is proposing to amend 49 CFR 1572.403(a) (state collection of
HME fees), 1572.405(a) (TSA collection of HME fees), and 1572.501(b)
(collection of TWIC fees) to remove references to specific fee amounts,
and instead publish any revisions to fee schedules in the Federal
Register.
These amendments would make the provisions for HME and TWIC fees
consistent with regulations regarding fees for STAs collected under 49
CFR part 1540, subpart C (related to civil aviation security). They
would also be consistent with methods for communicating changes for
fees required by the FBI \23\ and the Federal Emergency Management
Agency.\24\
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\23\ See 76 FR 78950 (Dec. 20, 2011).
\24\ See 74 FR 66138 (Dec. 14, 2009).
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These proposed revisions would not affect FBI fees, as specified in
49 CFR 1572.403(a)(2) (state collection of HME fees), 1572.405(a)(3)
(TSA collection of HME fees), and 1572.501(b)(3). The proposed
revisions would also not affect the ability of a State to collect any
other fees that it may impose on an individual who applies to obtain or
renew an HME, as specified in current 49 CFR 1572.403(b)(3).
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that TSA consider the impact of paperwork and other
information collection burdens imposed on the public and, under the
provisions of PRA sec. 3507(d), obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. TSA has determined
that this proposed rule does not affect current information collection
requirements associated with the affected regulatory provisions.
TSA has two collection requirements relevant to this rulemaking.
For TWIC purposes (OMB 1652-0047), TSA collects information needed to
process TWIC enrollment and conduct the STA. At the enrollment center,
applicants verify their biographic information and provide identity
documentation, biometric information, and proof of immigration status
(if required). This information allows TSA to complete a comprehensive
STA. If TSA determines that the applicant is qualified to receive a
TWIC, TSA notifies the applicant that their TWIC is ready for
activation. Once activated, this credential will be used for
identification verification and access control. TSA also conducts a
survey to capture worker overall satisfaction with the enrollment
process; this optional survey is provided during the activation period.
For purposes of the HME (OMB 1652-0027), the collection involves
applicant submission of biometric and biographic information for TSA's
STA in order to obtain the HME on a CDL issued by the States and the
District of Columbia. Both of these collections are currently pending
renewal.
Economic Impact Analyses
Regulatory Evaluation Summary
Changes to Federal regulations must undergo several types of
economic analyses. First, Executive Orders (E.O.s) 13563 and 12866
direct agencies to assess the costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). Executive Order 13563 emphasizes the importance
of quantifying both costs and benefits, reducing costs, harmonizing
rules, and promoting flexibility. Second, the Regulatory Flexibility
Act of 1980 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. In developing U.S. standards, this act requires agencies to
consider international standards and, where appropriate to use them as
the basis for U.S. standards. 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 Assessment
In conducting these analyses, TSA provides the following
conclusions and summary information:
1. TSA has determined that this rulemaking is not a ``significant
regulatory action'' as defined in E.O. 12866;
2. TSA has certified that this rulemaking would not have a
significant impact on a substantial number of small entities;
3. TSA has determined that this rulemaking imposes no significant
barriers to international trade as defined by the Trade Agreement Act
of 1979; and
4. TSA has determined that this rulemaking does not impose an
unfunded mandate on state, local, or tribal governments, or on the
private sector as defined by the Unfunded Mandates Reform Act (UMRA).
The basis for these conclusions is set forth below.
Costs
This proposed rule consists of an administrative revision.
Therefore, there are no industry costs associated with the proposal.
TSA costs for implementing the proposed rule would consist of
administrative costs largely covered by current operations and
therefore considered de minimis.
Benefits
By statute, TSA must sustain the HME and TWIC STA programs through
user fees. The proposed revisions to existing regulations would
increase TSA's flexibility to modify fees, as necessary, to ensure that
STA, enrollment and credentialing fees reflect their associated costs,
thus creating a more efficient process. This ability would facilitate
the continual and ongoing funding of the TWIC and HME programs, allow
TSA to timely meet contractual obligations with vendors, and still
provide sufficient notice to affected stakeholders of any revisions to
the fees.
Absent the ability to amend fees through notice rather than
rulemaking, TSA is less likely to make timely changes to fees when
associated costs change, such as contracts or vendor pricing, and when
such changes are made, there is an increased likelihood that they would
be more dramatic. Amending fees through notice would allow for more
incremental changes and reduce the risk of TSA suspending issuance of
credentials to meet HME or TWIC program requirements or
[[Page 35348]]
decreasing services until a rule change is completed to reflect the new
fee amount.
Regulatory Flexibility Act Assessment
When an agency issues a proposed rulemaking, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' which will ``describe the impact of the proposed rule on
small entities,'' \25\ Section 605 of the RFA allows an agency to
certify a rule, in lieu of preparing an analysis, if the proposed
rulemaking is not expected to have a significant economic impact on a
substantial number of small entities. For purposes of the RFA, small
entities include small businesses, small not-for-profit organizations,
and small governmental jurisdictions. Individuals and States are not
included in the definition of a small entity.
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\25\ See 5 U.S.C. 603(a).
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The proposed rule is an administrative revision to 49 CFR 1572
Subpart E (``Fees for Security Threat Assessments for Hazmat Drivers'')
and Subpart F (``Fees for Security Threat Assessments for
Transportation Worker Identification Credential (TWIC)'') and does not
impose any additional direct costs on the maritime or hazardous
material transportation industries, including costs incurred by small
entities. Therefore, TSA certifies that this rulemaking would not have
a significant economic impact on a substantial number of small
entities. However, TSA invites comments from members of the public who
believe there would be a significant impact.
Small entities impacted by current HME and TWIC fee collection
regulations, which this proposed rule is revising, include maritime
industries associated with ports (i.e., vessels and facilities)
regulated under the MTSA. Specifics on impacted entities are provided
in the TWIC Implementation in the Maritime Sector Final Rule Regulatory
Impact Assessment published December 21, 2006.\26\ Using the North
American Industry Classification System (NAICS) codes and information
from the 2007 Economic Census,\27\ TSA identified 11,395 covered
entities of which 90 percent (10,206) are considered small based on
Small Business Administration (SBA) standards. Truck drivers who
transport hazardous materials required to obtain a HME as a supplement
to their CDL are also impacted by the current HME and TWIC fee
collection regulations.\28\ Some transportation companies hauling
hazardous materials (in other words, for-hire contractors transporting
hazardous materials) may be impacted by the HME requirement. TSA
assumes firms engaging in truck transportation of hazmat are generally
found in the specialized freight trucking industry (NAICS code 4842).
Economic Census 2007 data \29\ indicates 39,023 entities operating
under NAICS code 4842 of which 99.6 percent (38,868) would be
considered small based on SBA size standards (revenues of $25.5 million
or less). Therefore, the current HME and TWIC fee collection
regulations, which this proposed rule is revising, impacts a
substantial number of small entities. However, as stated previously,
this proposed rule is an administrative change and does not result in
any additional direct costs on the maritime or hazmat industry,
including costs incurred by small entities in those industries. As
such, TSA certifies that the proposed rule would not have a significant
economic impact on a substantial number of small entities.
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\26\ See, e.g., Deep Sea Freight Transport (NAICS 483111), Deep
Sea Passenger Transport (NAICS 483112), Coastal and Great Lakes
Freight Transport (NAICS 483113), Coastal and Great Lakes Passenger
Transport (NAICS 48314), Inland Water Freight Transport (NAICS
483211), Inland Water Passenger Transport (NAICS 483212), Scenic and
Sightseeing Transportation, Water (NAICS 487210), Navigational
Services to Shipping (NAICS 488330), Other Support Activities for
Water Transportation (NAICS 488390), Commercial Air, Rail, and Water
Transportation Equipment Rental and Leasing (NAICS 532411),
Sightseeing Water (NAICS 48799), Casinos (except Casino Hotels)
(NAICS 713210), Other Gambling Industries (NAICS 713930), Marinas
(NAICS 713930), Ports and Harbors (NAICS 488310), Marine Cargo
Handling (NAICS 48832), Seafood Product Preparation and Packaging
(NAICS 3117), Ship Building and Repair (NAICS 336611), Boat Building
(NAICS 336612).
\27\ U.S. Census Bureau, Business & Industry, 2007 Economic
Census (available at <http://www.census.gov/econ/> (Subject Series:
Establishment and Firm Size (national) Table 4. Revenue Size of
Firms for the U.S.) and (Summary Series: General Summary (national)
Table 1. Industry Statistics for the U.S.).
\28\ See 49 CFR 1572.403 and 1573.405.
\29\ U.S. Census Bureau, Business & Industry, 2007 Economic
Census; Sector 48: Transportation and Warehousing: Subject Series--
Estab & Firm Size: Summary Statistics by Revenue Size of Firms for
the United States: 200. Available at <http://factfinder.census.gov/servlet/IBQTable?_bm=y&-ds_name=EC0748SSSZ4&-ib_type=NAICS2007&-NAICS2007=4842>.
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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 as TSA has determined that there are no
associated industry costs, it does not impose significant barriers to
international trade.
Unfunded Mandates Assessment
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4,
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 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 final rule under the principles and criteria
of E.O. 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 Analysis
The energy impact of the action 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
Appeals, Commercial Driver's License, Criminal history background
checks, Explosives, Facilities, Hazardous materials transportation,
Maritime security, Merchant mariners,
[[Page 35349]]
Motor carriers, Motor vehicle carriers, Ports, Seamen, Security
measures, Security threat assessment, Vessels, Waivers.
The Proposed Amendments
For the reasons set forth in the preamble, the Transportation
Security Administration proposes to amend part 1572 of Chapter XII of
Title 49, Code of Federal Regulations, as follows:
PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS
1. The authority citation for part 1572 continues to read as
follows:
Authority: 46 U.S.C. 70105; 49 U.S.C. 114, 5103a, 40113, and
46105; 18 U.S.C. 842, 845; 6 U.S.C. 469.
Subpart E--Fees for Security Threat Assessments for Hazmat Drivers
2. In Sec. 1572.403 revise parapgraphs (a) through (a)(3) to read
as follows:
Sec. 1572.403 Procedures for collection by States.
* * * * *
(a) Imposition of fees. (1) An individual who applies to obtain or
renew an HME, or the individuals' employer, must remit to the State the
Threat Assessment Fee and the FBI Fee, in a form and manner approved by
TSA and the State, when the individual submits the application for the
HME to the State.
(2) TSA shall publish the Threat Assessment Fee described in this
subpart for an individual who applies to obtain or renew and HME as a
notice in the Federal Register. TSA reviews the amount of the fees
periodically, at least once every two years, to determine the current
cost of conducting security threat assessments. Fee amounts and any
necessary revisions to the fee amounts shall be determined by current
costs, using a method of analysis consistent with widely accepted
accounting principles and practices, and calculated in accordance with
the provisions of 31 U.S.C. 9701 and other applicable Federal law.
(3) The FBI Fee required for the FBI to process fingerprint
identification records and name checks required under 49 CFR part 1572
is determined by the FBI under Public Law 101-515. If the FBI amends
this fee, the individual must remit the amended fee.
* * * * *
3. In Sec. 1572.405 revise paragraphs (a)(1) through (a)(4) to
read as follows:
Sec. 1572.405 Procedures for collection by TSA.
* * * * *
(a) Imposition of fees. (1) An individual who applies to obtain or
renew an HME, or the individuals' employer, must remit to the TSA agent
the Information Collection Fee, Threat Assessment Fee, and FBI Fee, in
a form and manner approved by TSA, when the individual submits the
application required under 49 CFR part 1572.
(2) TSA shall publish the Information Collection Fee and Threat
Assessment Fee described in this subpart for an individual who applies
to obtain or renew and HME as a notice in the Federal Register. TSA
reviews the amount of the fees periodically, at least once every two
years, to determine the current cost of conducting security threat
assessments. Fee amounts and any necessary revisions to the fee amounts
shall be determined by current costs, using a method of analysis
consistent with widely accepted accounting principles and practices,
and calculated in accordance with the provisions of 31 U.S.C. 9701 and
other applicable Federal law.
(3) The FBI Fee required for the FBI to process fingerprint
identification records and name checks required under 49 CFR part 1572
is determined by the FBI under Pub. L. 101-515. If the FBI amends this
fee, TSA or its agent, will collect the amended fee.
* * * * *
Subpart F--Fees for Security Threat Assessments for Transportation
Worker Identification Credential (TWIC)
3. Amend Sec. 1572.501 by revising introductory paragraph (b)
through (b)(3), (c)(1) through (c)(2), (d), and (g) to read as follows:
Sec. 1572.501 Fee collection.
* * * * *
(b) Standard TWIC Fees. The fee to obtain or renew a TWIC, except
as provided in paragraphs (c) and (d) of this section, includes the
following segments:
(1) The Enrollment Segment Fee covers the costs for TSA or its
agent to enroll applicants.
(2) The Full Card Production/Security Threat Assessment Segment Fee
covers the costs for TSA or its agent to conduct a security threat
assessment and produce the TWIC.
(3) The FBI Segment Fee covers the costs for the FBI to process
fingerprint identification records, and is the amount collected by the
FBI under Pub. L. 101-515. If the FBI amends this fee, TSA or its agent
will collect the amended fee.
(c) * * *
(1) The Enrollment Segment Fee covers the costs for TSA or its
agent to enroll applicants.
(2) The Reduced Card Production/Security Threat Assessment Segment
covers the costs for TSA to conduct a portion of the security threat
assessment and issue a TWIC.
(d) Card Replacement Fee. The Card Replacement Fee covers the costs
for TSA to replace a TWIC when a TWIC holder reports that his/her TWIC
has been lost, stolen, or damaged.
* * * * *
(g) Imposition of fees. TSA routinely establishes and collects fees
to conduct the security threat assessment and credentialing process.
These fees apply to all entities requesting a security threat
assessment and/or credential. The fees described in this section for an
individual who applies to obtain, renew, or replace a TWIC under 49 CFR
part 1572, shall be published as a notice in the Federal Register. TSA
reviews the amount of these fees periodically, at least once every two
years, to determine the current cost of conducting security threat
assessments. Fee amounts and any necessary revisions to the fee amounts
shall be determined by current costs, using a method of analysis
consistent with widely accepted accounting principles and practices,
and calculated in accordance with the provisions of 31 U.S.C. 9701 and
other applicable Federal law.
Issued in Arlington, Virginia, on June 5, 2012.
John S. Pistole,
Administrator.
[FR Doc. 2012-14426 Filed 6-12-12; 8:45 am]
BILLING CODE 9110-05-P