Provisions for Fees Related to Hazardous Materials Endorsements and Transportation Worker Identification Credentials, 35343-35349 [2012-14426]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Transportation Security Administration

[Federal Register Volume 77, Number 114 (Wednesday, June 13, 2012)]
[Proposed Rules]
[Pages 35343-35349]
From the Federal Register Online via the Government Printing 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 https://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 carolyn.mitchell@dhs.gov.
    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 traci.klemm@dhs.gov.

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 
https://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 https://www.regulations.gov;
    (2) Accessing the Government Printing Office's Web page at https://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 https://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 https://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.

[[Page 35347]]

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 <https://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 <https://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