[Federal Register: February 6, 2003 (Volume 68, Number 25)]
[Rules and Regulations]
[Page 6083-6088]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06fe03-7]
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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:
Benjamin.Klein@tsa.dot.gov.
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