[Federal Register Volume 68, Number 216 (Friday, November 7, 2003)]
[Rules and Regulations]
[Pages 63033-63040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28136]


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DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1572

[Docket No. TSA-2003-14610; Amendment No. 1572-2]
RIN 1652-AA17


Security Threat Assessment for Individuals Applying for a 
Hazardous Materials Endorsement for a Commercial Drivers License; 
Amended Interim Final Rule

AGENCY: Transportation Security Administration (TSA), Department of 
Homeland Security (DHS).

[[Page 63034]]


ACTION: Interim final rule; amendment.

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SUMMARY: The Transportation Security Administration (TSA) is amending 
its Interim Final Rule (IFR) that establishes standards for security 
threat assessments of individuals applying for, renewing, or 
transferring a hazardous materials endorsement (HME) for a commercial 
drivers license (CDL). TSA is adding a definition and moving the date 
on which fingerprint-based criminal history record checks must begin. 
TSA will not authorize a State to issue HME unless the State is 
collecting the biographical and criminal history information required 
with fingerprints and submitting fingerprints by April 1, 2004. If a 
State is unable to collect this information by April 1, 2004, the State 
must submit a request for extension to TSA on or before April 1, 2004. 
TSA may approve the extension request, but will not extend the due date 
beyond December 1, 2004. If the State cannot begin submitting 
fingerprints of HME applicants as of April 1, 2004, the State must 
submit a plan to TSA outlining the fingerprint process that it will 
deploy and a timeline to ensure that the State will be submitting 
fingerprints by December 1, 2004. The plan must be submitted by April 
1, 2004, and be consistent with Federal Bureau of Investigation (FBI) 
fingerprint collection and submission procedures. TSA is not changing 
the provision in the IFR that requires individuals with a HME to 
surrender their endorsement if they do not meet the threat assessment 
standards in the rule.

DATES: Effective Date: This interim final rule is effective on November 
3, 2003.

FOR FURTHER INFORMATION CONTACT: For technical questions: John Berry, 
Credentialing Program Office, Transportation Security Administration 
Headquarters, East Building, Floor 8, 601 12th Street, telephone: 571-
227-1757, e-mail: [email protected]. Steve Sprague, Maritime and 
Land, Transportation Security Administration, West Building, Floor 9, 
701 12th Street, telephone: (571) 227-1468, [email protected].
    For legal questions: Dion Casey, Office of Chief Counsel, 
Transportation Security Administration Headquarters, West Building, 
Floor 8, TSA-2, 601 South 12th Street; Arlington, VA 22202-4220 
telephone: 571-227-2663; e-mail: [email protected]; or Christine 
Beyer, same office address as above; telephone: 571-227-2657; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Comments

    TSA is not requesting comments to this amended interim final rule. 
Instead, TSA will publish a notice of proposed rulemaking shortly to 
address the criminal history background check process for HME 
applicants, and will solicit comments at that time. With publication of 
the NPRM, TSA will open a new docket and request comments on the 
security threat assessment process for HME applicants in its entirety.

Availability of Rulemaking Document

    You can get an electronic copy of this interim final rule (IFR) 
using the Internet by:
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Accessing the Government Printing Office's Web page at http://www.access.gpo.gov/su_docs/aces/aces140.html; or
    (3) Visiting the TSA's Laws and Regulations Web page at http://www.tsa.gov/laws_regs/gov_index.shtm.
    In addition, copies are available by writing or calling the 
individuals in the FOR FURTHER INFORMATION CONTACT section. Please be 
sure to identify the docket number when making requests.

Small Entity Inquiries

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

Background

    On May 5, 2003, TSA published an IFR that requires a security 
threat assessment of commercial drivers who are authorized to transport 
hazardous materials.\1\ The IFR implements several statutory mandates, 
discussed below, including criminal history record checks, checks 
against international databases, and appeal and waiver procedures. 
(Although the statute does not clearly state that the criminal history 
background check must be based on fingerprinting, the criminal history 
databases cannot be accessed without submitting fingerprints, when the 
check is done for a non-criminal justice purpose as is the case here.) 
In the IFR, TSA also stated that it would provide guidance on the form 
and manner fingerprints would be collected and adjudicated.
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    \1\ 68 FR 23852 (May 5, 2003).
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    TSA requested and received comments from the States, labor 
organizations, and trucking industry associations. In addition, TSA 
held working group sessions with the States to discuss potential 
fingerprinting systems that would achieve the statutory requirements, 
but would not adversely impact the States.
    Based on the comments received and our working sessions with the 
States, it appears that the States are in the best position to develop 
a plan to ensure that HME holders will be fingerprinted. TSA, however, 
is best situated to examine whether an individual poses a security 
threat under the other provisions of the rule, such as alien status, 
and terrorist connections. Under this scheme, TSA would continue to 
make the final determination as to whether an individual poses a 
security threat, combining the criminal history information the State 
develops with the terrorist-related background information, including 
alien status and terrorist-related databases, that TSA develops. In 
addition, TSA would continue to administer appeals of the terrorist-
related background information for individuals who believe the records 
on which TSA's determination is made are incorrect or involve mistaken 
identity. Finally, TSA would administer the waiver program set forth in 
the IFR for all HME applicants. Shortly after publication of this 
amended IFR, TSA is issuing a separate notice of proposed rulemaking 
(NPRM) to explain and solicit comments on the revised process.

USA PATRIOT Act

    The Uniting and Strengthening America by Providing Appropriate 
Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act 
was enacted on October 25, 2001.\2\ Section 1012 of the USA PATRIOT Act 
amended 49 U.S.C. Chapter 51 by adding a new section 5103a titled 
``Limitation on issuance of hazmat licenses.'' Section 5103a(a)(1) 
provides:
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    \2\ Pub. L. 107-56, October 25, 2001, 115 Stat. 272.

    A State may not issue to any individual a license to operate a 
motor vehicle transporting in commerce a hazardous material unless 
the Secretary of Transportation has first determined, upon receipt 
of a notification under subsection (c)(1)(B), that the individual 
does not pose a

[[Page 63035]]

security risk warranting denial of the license.\3\
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    \3\ The Secretary of Transportation delegated the authority to 
carry out the provisions of this section to the Under Secretary of 
Transportation for Security/Administrator of TSA. 68 FR 10988, March 
7, 2003.

    Section 5103a(a)(2) subjects license renewals to the same 
requirements.
    Section 5103a(c) requires the Attorney General, upon the request of 
a State in connection with issuance of a HME, to carry out a background 
records check of the individual applying for the endorsement and, upon 
completing the check, to notify the Secretary (as delegated to the 
Administrator of TSA) of the results. The Secretary then determines 
whether the individual poses a security risk warranting denial of the 
endorsement. The background records check must consist of: (1) A check 
of the relevant criminal history databases; (2) in the case of an 
alien, a check of the relevant databases to determine the status of the 
alien under U.S. immigration laws; and (3) as appropriate, a check of 
the relevant international databases through Interpol-U.S. National 
Central Bureau or other appropriate means.

Safe Explosives Act

    Congress enacted the Safe Explosives Act (SEA) on November 25, 
2002.\4\ Sections 1121-1123 of the SEA amended section 842(i) of Title 
18 of the U.S. Code by adding several categories to the list of persons 
who may not lawfully ``ship or transport any explosive in or affecting 
interstate or foreign commerce'' or ``receive or possess any explosive 
which has been shipped or transported in or affecting interstate or 
foreign commerce.'' Prior to the amendment, 18 U.S.C. 842(i) prohibited 
the transportation of explosives by any person under indictment for or 
convicted of a felony, a fugitive from justice, an unlawful user or 
addict of any controlled substance, and any person who had been 
adjudicated as a mental defective or committed to a mental institution. 
The amendment added three new categories to the list of prohibited 
persons: aliens (with certain limited exceptions), persons dishonorably 
discharged from the armed forces, and former U.S. citizens who have 
renounced their citizenship. Individuals who violate 18 U.S.C. 842(i) 
are subject to criminal prosecution.\5\ These incidents are 
investigated by the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF) of the Department of Justice and referred, as 
appropriate, to United States Attorneys.
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    \4\ Pub. L. 107-296, November 25, 2002, 116 Stat. 2280.
    \5\ The penalty for violation of 18 U.S.C. 842(i) is up to ten 
years imprisonment and a fine of up to $250,000.
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    However, 18 U.S.C. 845(a)(1) provides an exception to section 
842(i) for ``any aspect of the transportation of explosive materials 
via railroad, water, highway, or air which are regulated by the United 
States Department of Transportation (DOT) and agencies thereof, and 
which pertain to safety.'' Under this exception, if DOT regulations 
address the transportation security issues of persons engaged in a 
particular aspect of the safe transportation of explosive materials, 
then those persons are not subject to prosecution under 18 U.S.C. 
842(i) while they are engaged in the transportation of explosives in 
commerce. TSA issued the interim final rule in coordination with 
agencies within DOT, the Federal Motor Carrier Safety Administration 
and Research and Special Programs Administration, and triggered this 
exception. For the reasons set forth below, the action TSA takes now 
does not affect the application of the exception.

The Interim Final Rule

    To comply with the mandates of the USA PATRIOT Act, and to trigger 
the exception in 18 U.S.C. 845(a)(1) for the transportation of 
explosives, TSA issued the IFR (68 FR 23852). Under the IFR, TSA 
determines that an individual poses a security threat if he or she: (1) 
Is an alien (unless he or she is a lawful permanent resident) or a U.S. 
citizen who has renounced his or her U.S. citizenship; (2) is wanted or 
under indictment for certain felonies; (3) has a conviction in military 
or civilian court for certain felonies; (4) has been adjudicated as a 
mental defective or involuntarily committed to a mental institution; or 
(5) is considered to pose a security threat based on a review of 
pertinent databases.
    The IFR also establishes conditions under which an individual who 
has been determined to be a security threat can appeal the 
determination, and a waiver process for those individuals who otherwise 
could not obtain an HME because they had a disqualifying felony, or 
were adjudicated as a mental defective or involuntarily committed to a 
mental institution. Finally, the IFR prohibits an individual from 
holding, and a State from issuing, renewing, or transferring, an HME 
for a driver unless the individual has met the TSA security threat 
assessment standards.

Summary of the Amended IFR

    This amended IFR adds a definition and changes language in the 
original IFR (68 FR 23852) regarding the date on which the States 
cannot issue, transfer, or renew HME unless a fingerprint-based 
background check has been completed. TSA provides a definition for the 
term ``revoke'' in response to comments received from the States. In 
some States, legislative language does not permit ``revocation'' of a 
hazardous material endorsement, but does permit removing authority to 
transport hazardous materials through disqualification, suspension, 
cancellation or other similar term. However, the IFR uses ``revoke'' 
when referring to individuals who are disqualified from holding a HME. 
Therefore, as requested by the States, we provide a definition to make 
clear that revocation is equivalent to cancellation, suspension, 
annulment, disqualification, or similar term.
    TSA is delaying the date on which fingerprint-based criminal 
history record checks must be underway from November 3 for several 
reasons. First, TSA received comments from 23 States requesting an 
extension of time so that they can garner needed State legislative 
changes, funds, and infrastructure to implement the new background 
check portion of the HME program. The primary concerns identified by 
States include the cost of purchasing fingerprinting equipment; time 
needed to hire and train personnel to operate the fingerprinting 
equipment; and State legislative changes necessary to collect fees and 
implement the program. Most of the States requested Federal funding to 
assist with development of the program.
    Second, TSA has worked closely with the States and pertinent 
nongovernmental organizations since the IFR was published and has 
determined that a ``one size fits all'' approach for fingerprint 
collection and adjudication is impractical. Each State currently has a 
system in place to license commercial drivers and award hazardous 
material endorsements. Also, each State currently has a system in place 
to collect fingerprints for criminal justice purposes and transmit them 
to the Attorney General. The States' systems vary widely in terms of 
size, complexity, automation, and funding. The States have consistently 
stated that TSA should not prescribe one detailed fingerprinting 
program, but should set minimum standards so that the States can make 
use of their current resources and programs. This should minimize 
costs, take into account unique State legislative requirements, and 
accommodate the level of automation each State currently possesses. 
Based on the foregoing, TSA is delaying the date

[[Page 63036]]

on which: (1) The information required in section 1572.5(e) of the IFR 
is collected; and (2) fingerprints are submitted.

Information Collection

    With respect to the first requirement, as of April 1, 2004, the 
States must be collecting the biographical and criminal history 
information currently required in section 1572.5(e), with the 
applicant's certification under penalty of criminal prosecution that 
the information is correct. This requirement applies only to 
individuals who are applying for, renewing or transferring a HME. The 
State is not required to gather this information for all current HME 
holders as of April 1, 2004; however, it must be collecting the 
information as drivers become due for renewal or seek to transfer or 
obtain a HME.
    This requirement enhances the State's ability to determine whether 
individuals with disqualifying offenses continue to transport hazardous 
materials in violation of the law. The individual's signature on the 
application required in section 1572.5(e) is a certification under 
penalty of 18 U.S.C. 1001 that the individual meets the security threat 
assessment standards set forth in the IFR. If the individual 
intentionally provides inaccurate information, an enforcement action 
can be initiated that may include imprisonment of not more than five 
years or a fine of up to $250,000, or both. The government believes 
this adds a deterrent for HME holders who have committed disqualifying 
offenses but have not surrendered their HME as required by section 
1572.5(b). However, it is important to note that nothing in this 
requirement alters an individual's ability to apply for a waiver under 
section 1572.143, if they have committed a disqualifying offense.
    If the State is unable to collect the information required in 
section 1572.5(e) by April 2004, the State may submit a written request 
to TSA to delay the collection requirement. TSA understands that some 
States may need to seek legislative changes and fee authority, or raise 
funds in order to accomplish the collection requirement, and it may be 
impossible to do so by April 2004. However, TSA will not grant any 
delays beyond December 1, 2004.

Fingerprint Submission

    With respect to the second requirement concerning fingerprint 
collection, the amended IFR provides that the State must be collecting 
fingerprints from individuals applying for, renewing, or transferring a 
HME and submitting them to the FBI as of April 1, 2004. The fingerprint 
collection must be accomplished in a manner consistent with FBI 
procedures. If the State is unable to collect fingerprints on or before 
April 2004, the State must submit a plan to TSA by April 1, 2004 
outlining the system it will put in place to capture fingerprints and 
pertinent information. The States must be collecting fingerprints and 
the required information for HME applicants no later than December 1, 
2004.
    As indicated in State comments to the IFR, most if not all States 
have devoted considerable attention to determining how the 
fingerprinting of HME applicants can be accomplished and coordinated 
within the existing hazardous material endorsement and commercial 
driver licensing programs. In meeting with the States, it has been 
evident that many States have a clear plan in mind to collect 
fingerprints and the other information required in section 1572.5(e), 
including the number of staff needed to administer the program, 
appropriate training for personnel involved in capturing fingerprints, 
and electronic upgrades necessary to handle increased data. Therefore, 
TSA does not anticipate that the States will have to expend significant 
time on developing the fingerprint collection plans. Many States will 
submit the plans they have been working with since publication of the 
IFR.
    Also, each State currently has fingerprint collection procedures in 
place that meet the FBI's collection standards, in order to process 
fingerprints through the FBI for criminal enforcement. These procedures 
may include electronic capture, or paper capture that can be digitally 
transmitted to the FBI. In addition, the procedures require an 
applicant to present proof of identity when the fingerprints are 
captured and sign a document certifying that all information provided 
with the fingerprints is true, under penalty of 18 U.S.C. 1001. The 
State plan must include these procedures or others that the FBI 
approves in the collection portion of the program in order to be 
acceptable to TSA.

Terrorist Checks

    Prior to December 2004, pursuant to Sec.  1572.107, TSA will 
conduct name-based background checks of Federal and international 
databases relating to terrorist activity. TSA will then conduct (1) 
checks for wants and warrants for the crimes listed in Sec.  1572.103; 
(2) checks of an individual's citizenship status under Sec.  1572.105; 
and (3) checks utilizing the Interstate Identification Index.
    If TSA discovers during the course of these name-based checks that 
an individual poses a security threat, has committed a disqualifying 
offense, or is evading law enforcement, consistent with Sec.  
1572.5(c)(1), TSA will contact the appropriate law enforcement agency 
and/or direct the State to revoke the individual's HME. If the 
individual challenges TSA's assertion, TSA or the State will provide 
the individual with an opportunity to correct underlying records or 
cases of mistaken identity by submitting fingerprints or corrected 
court records.
    With an estimated population exceeding 3.5 million drivers, the 
government must prioritize the background check process. TSA believes 
that these name-based checks enable the agency to focus on individuals 
who may pose a more immediate threat of terrorist or criminal activity, 
such as those who are wanted or under a warrant for one of the 
disqualifying crimes listed in Sec.  1572.103, those who are not 
citizens or lawful permanent residents of the U.S., and those who may 
present a potential terrorist threat.
    TSA has assessed the risks associated with the transportation of 
hazardous materials via commercial vehicle and has determined that in 
conducting name-based checks prior to December 2004 and initiating 
fingerprint-based criminal history checks as early as April 1, 2004, 
the risks are effectively addressed. The terrorist-related information 
that TSA will search prior to December 2004 is the best indication of 
an individual's predisposition to commit or conspire to commit 
terrorist acts. Evidence that an individual has been convicted recently 
of a felony such as theft or assault is important, and may indicate a 
security threat; but TSA has determined that the more imminent threat 
is an individual whose background includes terrorism-related 
information. This approach is consistent with the Patriot Act and the 
Safe Explosives Act, and meets the needs of the States.
    Also, it is important to note that TSA is not delaying the 
September 2, 2003 compliance date set forth in Sec.  1572.5(b) for 
surrendering a HME. This section requires any HME holder who does not 
meet the security threat assessment standards in part 1572 to surrender 
the endorsement beginning on September 2, 2003. For instance, an 
individual who knows that he or she has committed a disqualifying 
offense within the prescribed time periods, is required to relinquish 
their HME beginning September 2, 2003. Nothing in this

[[Page 63037]]

amended IFR alters this surrender requirement.
    The surrender requirement buttresses TSA's determination that we 
should attempt to identify potential terrorist threats from terrorism-
related information databases before analyzing criminal history 
records. As of today, all HME drivers are required to self-report any 
disqualifying offenses that would appear on a fingerprint-based 
criminal history records check. TSA will work closely with the State 
Departments of Motor Vehicles, labor organizations, and the trucking 
industry to communicate this surrender provision widely and to inform 
affected drivers of the existing waiver process.
    Based on the foregoing, the exception found in 18 U.S.C. 845(a)(1) 
continues to apply, and persons otherwise prohibited from lawfully 
possessing explosives who are transporting explosives in commerce would 
not be subject to criminal prosecution under section 842(i).

Section-by-Section Analysis

    TSA is adding a definition to Sec.  1572.3 to make certain that the 
current IFR, which requires revocation of a HME under certain 
conditions, will not impose a condition in the HME process that the 
States cannot complete. As discussed earlier, in some States 
legislative language prohibits the `revocation' of a HME legal, but 
permits the State to cancel, suspend, withdraw, or disqualify a 
hazardous material endorsement. TSA's new definition resolves this 
conflict with certain State legislation.
    TSA makes several changes to Sec.  1572.5 concerning the date on 
which TSA's threat assessment based on fingerprint-based criminal 
history record checks will begin. In paragraphs 1572.5(b) and (c), the 
new dates reflect TSA's decision to delay the date on which the States 
must be collecting information and submitting fingerprints to the FBI 
from November 3, 2003 to April 1, 2004, or under certain conditions to 
December 1, 2004 at the very latest.
    Paragraph 1572.5(c)(4) establishes the requirement that TSA will 
not authorize a State to issue, renew, or transfer a HME unless it is 
collecting the information required in Sec.  1572.5(e) and submitting 
fingerprints as of April 1, 2004. If the State cannot collect the 
required information by that date, the State may submit and TSA may 
approve a request to delay the collection requirement to December 1, 
2004. Also, if the State cannot submit fingerprints from HME applicants 
by April 1, 2004, the State must submit a plan to TSA explaining how 
fingerprint collection and submission will be accomplished before 
December 1, 2004.

Compliance

    As discussed in detail in the IFR published by FMCSA on May 5, 
2003, the provisions of 49 U.S.C. 31314, which require DOT to withhold 
certain Federal-aid highway funds from States that fail to comply 
substantially with the requirements for State participation in the CDL 
program, apply also to State compliance with those portions of the TSA 
rule implementing the Patriot Act that apply to States. In addition, 49 
U.S.C. 31312 authorizes DOT to prohibit States from issuing CDLs if the 
Secretary determines ``that a State is in substantial noncompliance'' 
with 49 U.S.C. chapter 313. These penalties are available for DOT to 
use when and if appropriate to encourage State compliance with TSA's 
rule.

Future Rulemaking

    It is important to note that TSA will publish a NPRM shortly after 
publication of this amended IFR, to propose minimum federal standards 
for the fingerprint collection, criminal history adjudication, and 
appeal process for HME applicants. In the NPRM, TSA will provide 
greater detail about what each State program should include, minimum 
standards for adjudication of the criminal history record check 
results, minimum standards for establishing an appeal process for the 
adjudication of the criminal history checks, and the potential costs 
for each portion of the background check.
    TSA will rely heavily on the comments the States provide to ensure 
that no State is forced to adhere to a rigid form beyond its financial 
or technological capacity. The NPRM will propose minimum components 
that each State program should include, but would permit the States to 
determine how it meets the minimum standards.
    The NPRM process will also provide TSA with the empirical data and 
information necessary to complete a comprehensive regulatory 
evaluation. TSA understands that the IFR and the amended IFR impose 
financial burdens on the States, some of which may be minimized through 
State and Federal fee authority. However, there may be States in which 
this is not possible, and TSA must seek a regulatory regime to prevent 
unnecessary financial burdens. TSA can achieve this through active 
participation of the States, the trucking industry, and private 
entities that may be able to provide low cost operational assistance.
    In addition, on October 3, 2003, legislation was enacted \6\ 
authorizing DHS to collect fees to cover the costs of implementing 
section 1012 of the Patriot Act. This new authority will aid TSA in 
completing the security threat assessment check for an estimated 3.5 
million commercial drivers. Therefore, TSA is also issuing a separate 
proposed rule to determine reasonable costs of background checks, on 
which drivers, the States and other interested parties may comment.
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    \6\ Department of Homeland Security Appropriations Act, 2004, 
Public Law 108-90, 117 Stat. 1137, October 1, 2003.
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Rulemaking Analyses and Notices

Justification for Immediate Adoption

    TSA is issuing this final rule without prior notice and opportunity 
to comment pursuant to its authority under section 4(a) of the 
Administrative Procedure Act (5 U.S.C. 553(b)). This provision allows 
the agency to issue a final rule without notice and opportunity to 
comment when the agency for good cause finds that notice and comment 
procedures are ``impracticable, unnecessary or contrary to the public 
interest.''
    The catastrophic effect of the attacks on the World Trade Center 
and Pentagon on September 11, 2001, revealed the vulnerability of the 
nation's transportation system to terrorism. National security and 
intelligence officials have warned that future terrorist attacks are 
likely. The number of commercial vehicles that carry hazardous 
materials is far greater than the number of aircraft that might be 
hijacked by terrorists. A vehicle carrying hazardous materials, if used 
as a weapon in a terrorist attack, could cause significant loss of life 
and property damage.
    Section 1012 of the USA PATRIOT Act is a measure to increase the 
security of highway transportation of hazardous materials. Because of 
the likelihood of future terrorist attacks, and the potential for 
significant casualties and property damage in the event of a terrorist 
attack involving a vehicle carrying hazardous materials, TSA believes 
that immediate action is warranted, and TSA finds that notice and 
public comment procedures under 5 U.S.C. 553(b) are impracticable and 
contrary to the public interest.
    It is important to note that TSA is not making fingerprint 
collection or submission of the State plan due upon publication of this 
document. The intervening months between the date this amended IFR is 
published and April 1, 2004 will provide additional time for the States 
to develop a plan for

[[Page 63038]]

fingerprint collection or begin it. As indicated in comments to the 
IFR, most States have already devoted considerable time to determining 
how drivers could best be fingerprinted in light of each State's 
current hazardous material endorsement and licensing program. 
Submitting a fingerprint collection plan to TSA that reflects this 
thinking by April 1 should be possible. On the other hand, some States 
will be prepared to begin fingerprint collection within three months 
and so need not prepare or submit a new plan to TSA. Therefore, TSA 
believes that this amended IFR will not impose significant time 
constraints on the States.
    By making the rule effective as of the date of publication, 
however, TSA can begin name checks of individuals against international 
and terrorist-related databases as soon as TSA has accurate driver data 
and is able to adjudicate the results of the checks.

Regulatory Evaluation

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993), provides for making determinations whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and to the requirements of the 
Executive Order.
    TSA has determined that this action is a significant regulatory 
action within the meaning of Executive Order 12866 because there is 
significant public interest in security issues since the events of 
September 11, 2001. This amended interim final rule responds to the 
background check requirements of section 1012 of the USA PATRIOT Act by 
establishing the criteria that will be used in determining whether an 
individual applying for, transferring, or renewing a HME poses a 
security risk warranting denial of the endorsement.
    TSA has performed a preliminary analysis of the expected costs of 
this interim final rule, but the figures may change when a full 
Regulatory Evaluation is completed in the proposed rulemaking that will 
follow publication of this document. TSA will prepare a full regulatory 
evaluation based on comments received from the States, the trucking 
industry, and pertinent nongovernmental organizations, which will 
improve the reliability of the cost and benefit estimates.

Initial Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980, as amended, (RFA) was 
enacted by Congress to ensure that small entities (small businesses, 
small not-for-profit organizations, and small governmental 
jurisdictions) are not unnecessarily or disproportionately burdened by 
Federal regulations. The RFA requires agencies to review rules to 
determine if they have ``a significant economic impact on a substantial 
number of small entities.'' TSA has determined that the amended interim 
final rule will not have a significant economic impact on a substantial 
number of small entities.
    Current industry practice is for drivers to obtain their CDL 
certification as a condition of employment. Individuals are required to 
have a current CDL with appropriate endorsements to be eligible for 
employment. This is an employment cost typically borne by the 
individual employee. This amended IFR will affect the States, but they 
are not considered ``small governmental jurisdictions'', such as small 
towns or boroughs. Therefore, the burden on small business entities 
from this rule is expected to be de minimis.
    TSA conducted the required review of this rule accordingly, 
pursuant to the Regulatory Flexibility Act, 5 U.S.C. 605(b) TSA 
certifies that this rule will not have a significant impact on a 
substantial number of small entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et 
seq.), a Federal agency must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. This amended 
interim final rule contains information collection activities subject 
to the PRA. Accordingly, the following information requirements are 
being submitted to OMB for its review.
    Title: Security Threat Assessment for Individuals Applying for a 
Hazardous Materials Endorsement for a Commercial Driver's License.
    Summary: TSA is establishing standards for security threat 
assessments of individuals applying for, renewing, or transferring a 
hazardous materials endorsement (HME) for a commercial driver's license 
(CDL), which in addition to the information already collected by the 
States for the purpose of HME applications will now include 
fingerprints as well as the disclosure of the applicant's citizenship, 
mental health defects, and criminal history. States must also submit a 
plan to TSA outlining the fingerprint process they intend to implement.
    Use of: Truck drivers must complete an application and provide 
fingerprints for the purpose of conducting a background check. The 
States and local agencies will most likely collect this information 
when individuals apply for, renew or transfer an HME. This information 
will be used to conduct background checks to ensure that these 
individuals do not have a disqualifying criminal offense on their 
record. In addition, the States' fingerprint collection plans will be 
used by TSA to ensure regulatory compliance, uniformity of standards, 
and adequacy of process.
    Respondents (including number of): The likely respondents to this 
proposed information requirement are individuals applying for, renewing 
or transferring an HME and each of the 50 States, for a pool of 
approximately 3.5 million respondents.
    Frequency: Estimates indicate that approximately 3.5 million people 
have an HME and this number is expected to grow by approximately 2.8% 
people per year for a ten-year total of approximately 4.5 million 
people (450,000 annualized). The number of fingerprint applications to 
be collected over a ten-year period is approximately 8.7 million 
(870,000 annualized). This number includes new applicants and renewals, 
which occur at least once every five years. States are required to 
submit their fingerprinting plans upon their completion or amendment.
    Annual Burden Estimate: Fingerprint costs consist of a processing 
fee, processing time, and material. The average cost for the 
fingerprint process was estimated at approximately $50 per set when the 
original IFR was published. However, empirical data and further 
research indicate that this estimate is low for the population covered 
by this rule. We also estimate that it would take an average of thirty 
minutes to complete an FBI fingerprint card and forward it to the FBI 
for further processing. Based on this information, TSA originally 
estimated that the background check process would involve 4.4 million 
hours over the ten-year (436,000 annualized) and would cost $452 
million over the ten-year period ($45.2 million annualized). However, 
TSA now believes that these estimates may be low and requests comment 
from all affected parties concerning cost assumptions that can be made 
in preparing this analysis.
    The agency is soliciting comments to--
    (1) Evaluate whether the proposed information requirement is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
    (2) Evaluate the accuracy of the agency's estimate of the burden;

[[Page 63039]]

    (3) Enhance the quality, utility, and clarity of the information to 
be collected; and
    (4) Minimize the burden of the collection of information on those 
who are to respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Individuals and organizations may submit comments on the 
information collection requirement by January 6, 2004, and should 
direct them via fax to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Attention: DHS-TSA Desk 
Officer, at (202) 395-5806. Comments to OMB are most useful if received 
within 30 days of publication.
    As protection provided by the Paperwork Reduction Act, as amended, 
an agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number. The OMB control number for this information 
collection will be published in the Federal Register after OMB approves 
it.

Executive Order 13132 (Federalism)

    Executive Order 13132 requires TSA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' are defined in the Executive Order to include 
regulations that have ``substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government.'' Under the Executive Order, TSA may construe a Federal 
statute to preempt State law only where, among other things, the 
exercise of State authority conflicts with the exercise of Federal 
authority under the Federal statute.
    This action has been analyzed in accordance with the principles and 
criteria in the Executive Order, and it has been determined that this 
interim final rule does have Federalism implications or a substantial 
direct effect on the States. The amended interim final rule requires 
States to collect fingerprints or to submit a plan to TSA outlining how 
the fingerprint collection process would work. TSA will publish a NPRM 
shortly that will solicit comments from the States on the fingerprint 
collection process and other aspects of implementing the HME background 
check program. TSA will continue to consult extensively with the States 
to ensure that any burdens are minimized to the extent possible.
    TSA notes that FMCSA has communicated with the States on the 
requirements of the USA PATRIOT Act. The Assistant Administrator of 
FMCSA wrote to licensing officials in each State on October 31, 2001, 
briefly summarizing section 1012 of the USA PATRIOT Act, and asking 
them to continue issuing and renewing hazardous materials endorsements 
until the regulations implementing section 1012 were completed. Some 
States have already enacted legislation they consider necessary to 
carry out the mandates of section 1012.

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires Federal 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 more 
than $100 million in any one year (adjusted for inflation with base 
year of 1995). Before promulgating a rule for which a written statement 
is needed, section 205 of the UMRA generally requires TSA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objective of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. In 
addition, section 205 allows TSA to adopt an alternative other than the 
least costly, most cost-effective, or least burdensome alternative if 
the agency publishes with the final rule an explanation why that 
alternative was not adopted.
    This interim final rule will not result in the expenditure by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of more than $100 million annually. Thus, TSA has not 
prepared a written assessment under the UMRA.

Environmental Analysis

    TSA has analyzed this rulemaking action for the purposes of the 
National Environmental Policy Act. The agency has determined that 
implementation of this final rule will not have any significant impact 
on the quality of the human environment.

Energy Impact

    TSA has assessed the energy impact of this rule in accordance with 
the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as 
amended (42 U.S.C. 6362). TSA has determined that this rule is not a 
major regulatory action under the provisions of the EPCA.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety, 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 will continue to consult with Mexico and Canada under 
the North American Free Trade Agreement to ensure that any adverse 
impacts on trade are minimized. This rule applies only to individuals 
applying for a State-issued hazardous materials endorsement for a 
commercial drivers license. Thus, TSA has determined that this rule 
will have no impact on trade.

List of Subjects in 49 CFR Part 1572

    Commercial drivers license, Criminal history background checks, 
Explosives, Hazardous materials, Motor carriers, Motor vehicle 
carriers, Security measures, Security threat assessment.

The Amendments

0
For the reasons set forth in the preamble, the Transportation Security 
Administration amends 49 CFR Chapter XII, Subchapter D as follows:

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

0
1. The authority citation for part 1572 continues to read as follows:

    Authority: 49 U.S.C. 114, 5103a, 40113, 46105.

0
2. Amend Sec.  1572.3 by adding the following definition in 
alphabetical order to read as follows:


Sec.  1572.3  Terms used in this part.

* * * * *
    Revoke means the process by which a State cancels, suspends, 
withdraws, annuls, or disqualifies a hazardous material endorsement.
* * * * *

0
3. In Sec.  1572.5, revise paragraphs (b)(2)(i), (b)(2)(ii), (c)(1), 
(c)(2) introductory text and (c)(3) and add paragraph (c)(4) to read as 
follows.

[[Page 63040]]

Sec.  1572.5  Security threat assessment for commercial drivers' 
licenses with a hazardous materials endorsement.

* * * * *
    (b) * * *
    (2) * * *
    (i) From November 3, 2003 to December 1, 2004, an individual may 
submit fingerprints, in a form and manner specified by the State and 
TSA, when a State revokes the individual's hazardous materials 
endorsement under paragraph (c)(1) of this section.
    (ii) When so notified by the State, an individual must submit 
fingerprints, in a form and manner specified by the State and TSA, when 
he or she applies to obtain, renew, or transfer a hazardous materials 
endorsement for a CDL, or when requested by TSA.
* * * * *
    (c)(1) Each State must revoke an individual's hazardous materials 
endorsement if TSA informs the State that the individual does not meet 
the standards for security threat assessment in paragraph (d) of this 
section.
    (2) No later than December 1, 2004:
* * * * *
    (3) From November 3, 2003 to June 1, 2005, while TSA is conducting 
a security threat assessment on an individual, if the individual holds 
a CDL with a hazardous materials endorsement, and is applying for 
renewal or transfer of the endorsement, the State that issued the 
endorsement may extend the expiration date of the individual's 
endorsement until the State receives a Final Notification of Threat 
Assessment or Notification of No Security Threat from TSA.
    (4) TSA will not authorize a State to issue, renew, or transfer 
hazardous material endorsements unless the State issuing the 
endorsement is --
    (i) Collecting the information required in Sec.  1572.5(e) as of 
April 1, 2004; or the State provides written justification for an 
extension of time not to exceed December 1, 2004 and TSA grants the 
extension; and
    (ii) Submitting fingerprints in accordance with fingerprint 
collection standards of the Federal Bureau of Investigation and in 
accordance with procedures approved by TSA as of April 1, 2004; or the 
State submits a plan to TSA that describes how the State will collect 
fingerprints of individuals applying for, renewing, or transferring a 
hazardous materials endorsement no later than December 1, 2004.
* * * * *

    Issued in Arlington, VA on November 4, 2003.
Stephen McHale,
Deputy Administrator.
[FR Doc. 03-28136 Filed 11-4-03; 4:22 pm]
BILLING CODE 4910-62-P