[Federal Register Volume 78, Number 80 (Thursday, April 25, 2013)]
[Rules and Regulations]
[Pages 24353-24360]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-09732]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1572

[Docket No. TSA-2004-19605; Amendment No. 1572-10]


Provisions for Fees Related to Hazardous Materials Endorsements 
and Transportation Worker Identification Credentials

AGENCY: Transportation Security Administration, DHS.

ACTION: Final rule.

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SUMMARY: The Transportation Security Administration (TSA) is removing 
specific fee amounts from regulations regarding security threat 
assessments (STAs) and credentialing for Hazardous Materials 
Endorsements (HMEs) and Transportation Worker Identification 
Credentials (TWICs). These provisions include State collection of the 
HME fee, TSA collection of the HME fee, and collection of the TWIC fee. 
Removing specific fee references will enable TSA to have the necessary 
flexibility to lower or increase fees as necessary to meet the 
statutory obligation to recover its costs. Current fee amounts as 
identified in these sections will remain unchanged until any future 
revisions to fee schedules are published in the Federal Register.

DATES: Effective May 28, 2013.

FOR FURTHER INFORMATION CONTACT: Carolyn Mitchell, Office of 
Intelligence and Analysis (OIA), TSA-10, Transportation Security 
Administration, 601 South 12th Street, Arlington, VA 20598-6010; 
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: 

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

[[Page 24354]]

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 ``Stakeholders'' at the top of 
the page, then the link ``Research Center'' in the left column.
    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this rulemaking.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires TSA to comply with small entity requests for information 
and advice about compliance with statutes and regulations within TSA's 
jurisdiction. Any small entity that has a question regarding this 
document may contact the person listed in FOR FURTHER INFORMATION 
CONTACT. Persons can obtain further information regarding SBREFA on the 
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html.

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 United States Coast 
Guard (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) \1\ 
must successfully complete a security threat assessment (STA) and hold 
a Transportation Worker Identification Credential (TWIC) in order to 
enter secure areas without an escort.\2\ TSA conducts the STA and 
issues the credential, and the Coast Guard enforces the use of the TWIC 
at MTSA-regulated facilities. As required by MTSA, the STA includes 
checks of criminal history records, legal status and relevant 
international databases.\3\
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    \1\ See 46 U.S.C. 70105.
    \2\ See 33 CFR 105.514. See also 72 FR 3492 (Jan. 25, 2007) 
(TWIC and HME Final Rule).
    \3\ See 46 U.S.C. 70105.
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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 Hazardous Materials Endorsement 
(HME), pay a reduced TWIC Fee due to TSA's ability to confirm and 
leverage the existing, ongoing STA.\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 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 Interim Final 
Rule (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), which is referred to as 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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    Currently, TWIC and HME fee amounts, which reimburse TSA for the 
costs of administering the programs, have been 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). 
With this rule, TSA is removing specific fee amounts for these programs 
in 49 CFR part 1572. Current fee amounts as identified in these 
sections will remain unchanged until any future revisions to fee 
schedules are published as a Notice in the Federal Register.
    These revisions to 49 CFR part 1572 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. These revisions are also consistent with 
guidance in the Office of Management and Budget Circular A-25,\8\ which 
suggests that ``[w]henever possible, charges should be set as rates 
rather than fixed dollar amounts in order to adjust for changes in 
costs to the Government * * * .'' Circular A-25 6.a (2)(d).
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    \8\ Available at http://www.whitehouse.gov/omb/circulars_a025.
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    This final 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

    The Maritime Transportation Security Act required the Department of 
Homeland Security (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.\9\ In 
addition, nearly all credentialed merchant mariners are required to 
hold these transportation security cards.\10\ MTSA also required DHS to 
establish a waiver and appeals process for persons found to be 
ineligible for the required transportation security card.\11\
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    \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).
    \10\ As noted in the Fall 2012 Regulatory Agenda, the Coast 
Guard is currently revising its merchant mariner credentialing 
regulations to implement changes made by sec. 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 TWIC.
    \11\ See 46 U.S.C. 70105(c)(3).
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    Under 49 U.S.C. 5103a, a State is prohibited from issuing or 
renewing a CDL unless the Secretary of Homeland Security has first 
determined that the

[[Page 24355]]

driver does not pose a security threat warranting denial of the 
HME.\12\ 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 
collect and transmit the fingerprints and applicant information of such 
drivers.\13\ 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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    \12\ 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.
    \13\ 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 transportation vetting and credentialing programs.\14\ 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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    \14\ 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. TSA complies with applicable 
requirements, such as the The Chief Financial Officers (CFOs) Act of 
1990 \15\ and Office of Management and Budget Circular A-25,\16\ 
regularly reviewing the fee program to ensure that fees correctly 
recover, but do not exceed, the full cost of services and making 
appropriate adjustments to the fees.
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    \15\ 31 U.S.C. 501 et seq.
    \16\ 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 
\17\ or HME.\18\
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    \17\ See 49 CFR 1572.501(b-d).
    \18\ See 49 CFR 1572.405.

                                       Table 1--Current TWIC and HME Fees
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                                                                   HME (collected by      HME (collected by TSA
                                        TWIC (49 CFR 1572.501)       State) (49 CFR       or its agent) (49 CFR
                                                                       1572.403)                1572.405)
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Enrollment Segment or costs for TSA    $43.25.................  N/A....................  $38.00.
 or its agent to enroll applicants.
STA Segment or costs for TSA to        $72.00.................  $34.00.................  $34.00.
 conduct security threat assessment
 and produce cards.
FBI Segment or costs for fingerprint   Determined by FBI*.....  Determined by FBI*.....  Determined by FBI.*
 identification records.
Card Replacement.....................  $60.00.................  N/A....................  N/A.
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*Currently set at $14.50. See 76 FR 78950 (Dec. 20, 2011).

    There are reduced fees for TWIC applicants if they have undergone a 
comparable threat assessment.\19\ 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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    \19\ See 49 CFR 1572.501(c-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 pay for TSA's costs for 
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 charge 
and the methodology TSA will use 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.\20\ 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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    \20\ 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.\21\ 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 
choose to collect applicant data, 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 the State fees.
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    \21\ 70 FR 2542 (Jan. 13, 2005).
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    In finalizing these TWIC and HME methodologies, TSA considered 
comments from individual commercial drivers; labor organizations; 
trucking industry associations; State Departments of Motor Vehicles; 
longshoremen; mariners; associations representing the agricultural, 
chemical, explosives, maritime, and petroleum industries; and 
associations representing State

[[Page 24356]]

governments.\22\ TSA does not intend to change the methodologies for 
determining these fees.
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    \22\ See discussion regarding comments received in the HME Fee 
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,\23\ 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,\24\ the fees may be 
affected. Cost variations, such as changes in the number of 
enrollments, could also affect fees.
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    \23\ 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.
    \24\ 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), and 
awarded a contract on March 5, 2012.
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    In addition, DHS/TSA is required to review fees no less than every 
two years.\25\ 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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    \25\ See 31 U.S.C. 3512 (the Chief Financial Officers Act of 
1990 (Pub. L. 101-576, 104 Stat. 2838, Nov. 15, 1990)).
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Summary of the Rule

    As previously discussed, TSA has a statutory requirement to sustain 
the HME and TWIC STA programs through user fees. Currently, there is a 
risk that if the costs for these programs increase in the future, TSA 
would have to suspend issuance of credentials to meet HME or TWIC 
program requirements or decrease services until a rule change is 
completed to reflect any changes in fee amounts. To address this issue, 
TSA is revising the 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.
    In this final rule, TSA amends 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, 
continue to use the existing fees to support the programs, and publish 
as a Notice 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 \26\ and the Federal Emergency Management 
Agency.\27\
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    \26\ See 76 FR 78950 (Dec. 20, 2011).
    \27\ See 74 FR 66138 (Dec. 14, 2009).
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    These 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) (standard TWIC fees). Also, 
the revisions would not affect the ability of a State to collect any 
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).

Changes From the Notice of Proposed Rulemaking (NPRM)

    This final rule adopts the regulations proposed in the NPRM \28\ 
with no revisions. TSA has reviewed all comments received and, in 
response to those comments, posted information in the docket regarding 
the annual review of fees as required by 31 U.S.C. 3512.
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    \28\ Published in the Federal Register on June 13, 2012 (77 FR 
35343).
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Public Comments on the NPRM

    The public comment period for the NPRM closed on July 30, 2012. TSA 
received four public comments regarding this NPRM. Most of the comments 
received are based on issues regarding the TWIC and HME programs, 
rather than the issues raised in the NPRM. The proposed rule did not 
address any TWIC or HME program requirements or processes, it simply 
proposed eliminating the references to specific fee amounts in the 
current regulations. Consistent with the proposed rule, the regulations 
are modified to state that TSA will publish information regarding the 
fee segments, and any changes in those segments, through a Notice in 
the Federal Register rather than by specifically listing or amending 
them in the regulations. While most of the comments were unrelated to 
the scope of the proposed rule, TSA has chosen to address them below.

Comments Regarding Duplicate Fees

    Comments: Three commenters raised concern about the duplication of 
fees that occur when someone has a TWIC and also has a requirement to 
obtain an HME (or vice versa).
    TSA Response: These comments are beyond the scope of this 
rulemaking. TSA is, however, committed to aligning similar programs, 
where possible, to reduce the burden to applicants and has worked 
diligently to align the STAs required for these programs by 
establishing the same eligibility requirements, offering a standard 
waivers and appeals process, and leveraging the same fingerprint-based 
CHRC to reduce redundancy and costs for workers. TSA has determined 
that the STAs for the HME and TWIC are comparable and made appropriate 
reductions in fees.
     Reduced Fee: Applying for a TWIC when HME is valid and 
unexpired. Since October 2007 when the TWIC program deployed, an 
individual who applies for a TWIC and has successfully completed the 
HME STA is eligible to forego a full, duplicate STA and thus, pay a 
reduced fee for the TWIC. The fee for the TWIC is reduced from $129.75 
to $105.25. The reduced fee covers costs related to other components of 
the TWIC program, including enrollment and card issuance.
     Reduced Fee: Applying for an HME STA when TWIC STA is 
valid and unexpired. As of February 2012, an individual who applies for 
the HME STA and has successfully completed the TWIC STA may be eligible 
to forego a full, duplicate STA and thus, pay a reduced fee. Because 
HMEs are issued by the States, each State's ability to offer the 
reduced STA and fee HME depends on its licensing regulations, policies, 
processes, and systems in the particular State. Some States may not be 
able to offer comparability to applicants due to various licensing 
system or process constraints. There are 23 States that offer 
comparability as of September 2012.
    For individuals licensed in the 39 States and the District of 
Columbia that use the TSA enrollment agent for this program, the 
current fee for a full HME STA is $86.50. For individuals who have 
successfully completed the TWIC STA and request a reduced fee, the fee 
for the HME STA is $67.00. These fees cover the HME STA only, and 
States may charge additional fees for the HME application process such 
as testing and license issuance. States that do not use

[[Page 24357]]

a TSA enrollment agent for this program have not been able to offer 
comparability.

Comments Regarding Duplication of Credentials

    Comments: Comments suggested that TSA should require one credential 
across all modes of transportation, such as the TWIC.
    TSA Response: This comment is beyond the scope of this rulemaking. 
However, TSA is aware of this concern among its stakeholders and would 
like to take this opportunity to respond. TSA is seeking to harmonize 
STA policies, processes and systems for transportation vetting and 
credentialing programs in another rulemaking. TSA is required by law to 
issue a TWIC, a physical credential, to workers on certain maritime 
vessels and facilities. With respect to other populations in the field 
of transportation that are subject to TSA vetting, TSA completes the 
vetting and typically provide the results of the STA to the entity that 
actually grants the access or privilege. In many cases, these entities 
issue their own credential, generally after the individual meets 
additional competency and suitability requirements. Nothing in current 
statutes or case law would authorize TSA to prevent transportation 
facilities and entities from applying measures for suitability and 
access control based on their specific operational needs, business and 
statutory requirements, and availability of resources.

Comments Regarding Combining Programs

    Comments: One commenter suggested that rather than taking the 
actions proposed in the NPRM, TSA should ``focus its resources and 
energy in developing a single common platform that will allow the 
agency to develop an ``Enroll Once, Use Many'' STA system. TSA 
understands this comment to suggest that TSA develop a single, 
standardized STA system to allow individuals to provide comprehensive 
enrollment information once and use the same information across 
multiple programs.
    TSA Response: This comment is beyond the scope of this rulemaking. 
However, TSA is addressing this concern. TSA has been seeking ways to 
harmonize vetting programs, where possible, and is pursuing efforts to 
standardize STA enrollment to meet TSAs objective for an ``Enroll Once, 
Use Many'' concept. This concept would allow TSA, after capturing 
limited information to confirm an individual's identity, and to re-use 
information already held by DHS to enroll the applicant in another DHS 
program, if applicable. TSA is currently pursuing information 
technology modernization efforts to standardize STA systems by building 
a consolidated vetting and credentialing infrastructure that will 
provide a ``person-centric'' view of each individual vetted by TSA and 
the programs in which they participate.

Comments Regarding Data on Relationship Between Fees and Costs

    Comments: TSA received two comments concerning the extent to which 
the fees generated by the TWIC and HME programs relate to TSA's costs 
for running these programs, as well as questions regarding the 
underlying data.
    TSA Response: TSA consistently reviews all fees in accordance with 
Federal guidelines. These reviews indicate that since inception of the 
TWIC STAs and credentials in 2007, TSA has collected approximately $252 
million in fees and provided services costing approximately $237 
million. This fiscal position ensures that TSA has recovered sufficient 
revenue to fully offset current program costs and address future 
periods where service costs are expected to exceed revenue. Similarly, 
reviews also indicate that since the inception of HME STAs in 2005, TSA 
has collected approximately $102 million in fees and provided services 
costing approximately $97 million. This fiscal position ensures that 
TSA has recovered sufficient funding to fully offset current program 
costs and address future periods where service costs may exceed 
revenue. Future service costs could exceed revenue due to factors such 
as implementation of renegotiated vendor contracts with increased cost 
aspects or periods of decreased levels of enrollments where fixed costs 
cannot be fully recovered.

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 the 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 final 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 his or her 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).

[[Page 24358]]

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 final rule consists of an administrative revision. Therefore, 
there are no associated industry costs. TSA costs for implementing this 
rule 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 final regulation increases 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 facilitates the continual and ongoing funding of 
the TWIC and HME programs, allowing 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 allows for more 
incremental changes, allows for cost-savings to be immediately passed-
through to those required to pay the fees, and reduces the risk of TSA 
suspending issuance of credentials to meet HME or TWIC program 
requirements or decreasing services until a rule change is completed to 
reflect the new fee amount.

Regulatory Flexibility Act Assessment

    The Regulatory Flexibility Act (RFA) of 1980 requires agencies to 
perform a review to determine whether a proposed or final rule will 
have a significant economic impact on a substantial number of small 
entities.\29\ Section 605 of the RFA allows an agency to certify a 
rule, in lieu of preparing an analysis, if the 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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    \29\ See 5 U.S.C. 603(a).
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    This final rule is an administrative revision to 49 CFR part 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.
    Small entities impacted by current HME and TWIC fee collection 
regulations, which this rule revises, 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.\30\ Using the North American 
Industry Classification System (NAICS) codes and information from the 
2007 Economic Census,\31\ 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 an HME as a supplement to their CDL are 
also impacted by the current HME and TWIC fee collection 
regulations.\32\ 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 \33\ 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 rule revises, impact a substantial number of small entities. 
However, as stated previously, this final 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 final rule will 
not have a significant economic impact on a substantial number of small 
entities.
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    \30\ 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).
    \31\ U.S. Census Bureau, Business & Industry, 2007 Economic 
Census. Relevant NAICS codes include 48311, 48321, 487210, 488310, 
488320, 488330, 488390, 48799, 532411, 713210, 713930, 713930, 3117, 
336611, 336612. TSA assumes all entities in NAICS 3117, 336611 and 
336612 are small based on available data limitations. NAICS 31-33 
available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_31SG1&prodType=table. 
NAICS 48-49 available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_48SSSZ4&prodType=table. NAICS 53 available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_53SSSZ4&prodType=table. NAICS 
71 available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_71SSSZ4&prodType=table.
    \32\ See 49 CFR 1572.403 and 1573.405.
    \33\ 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. To access NAICS 4842, scroll to entries 501-
600 of 2,238. Available at http://factfinder2.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2007_US_48SSSZ4&prodType=table.
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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

[[Page 24359]]

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 record 
checks, Explosives, Facilities, Hazardous materials, Maritime security, 
Merchant mariners, Motor carriers, Motor vehicle carriers, Ports, 
Seamen, Security measures, Security threat assessment, Vessels, 
Waivers.

The Amendments

    For the reasons set forth in the preamble, the Transportation 
Security Administration amends part 1572 of Chapter XII of Title 49, 
Code of Federal Regulations, as follows:

PART 1572--CREDENTIALING AND SECURITY THREAT ASSESSMENTS

0
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

0
2. In Sec.  1572.403, revise paragraph (a) 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.
* * * * *
0
3. In Sec.  1572.405, revise paragraph (a) 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 an 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, TSA or its agent, will collect the amended fee.
* * * * *

Subpart F--Fees for Security Threat Assessments for Transportation 
Worker Identification Credential (TWIC)

0
3. Amend Sec.  1572.501 by revising paragraphs (b), (c)(1) and (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) * * *

[[Page 24360]]

    (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 April 18, 2013.
John S. Pistole,
Administrator.
[FR Doc. 2013-09732 Filed 4-24-13; 8:45 am]
BILLING CODE 9110-05-P