[Federal Register Volume 68, Number 216 (Friday, November 7, 2003)]
[Rules and Regulations]
[Pages 63030-63033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-28175]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 383

[Docket No. FMCSA-2001-11117]
RIN 2126-AA70


Limitations on the Issuance of Commercial Driver's Licenses With 
a Hazardous Materials Endorsement

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Interim final rule; delay of compliance date; request for 
comments.

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SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations 
(FMCSRs) prohibiting States from issuing, renewing, transferring or 
upgrading a commercial driver's license (CDL) with a hazardous 
materials (hazmat) endorsement unless the Transportation Security 
Administration (TSA) has first conducted a background records check of 
the applicant and determined the applicant does not pose a security 
risk warranting denial of the hazardous materials endorsement. The 
compliance date provisions being revised require States to collect 
fingerprints from individuals applying for, renewing, upgrading or 
transferring a hazmat endorsement for a CDL beginning November 3, 2003. 
FMCSA and TSA are changing that date to April 1, 2004, and TSA may 
postpone that date, in individual cases, to not later than December 1, 
2004.

DATES: Effective: This rule is effective on November 3, 2003. 
Compliance: State compliance with this rule is required beginning April 
1, 2004.
    Comments: Comments must be received on or before January 6, 2004.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA--2001-11117 by any of the following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    [sbull] Hand delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal Holidays.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Identification Number (RIN) for this 
rulemaking. Note that all comments received will be posted without 
change to http://dms.dot.gov, including any personal information 
provided. Please see the Privacy Act heading for further information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov at any time or to Room PL-
401 on the plaza level of the Nassif Building, 400 Seventh Street, SW., 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, 
except Federal Holidays.
    Privacy Act: Anyone is able to search the electronic form of all 
comments received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act

[[Page 63031]]

Statement in the Federal Register published on April 11, 2000 (Volume 
65, Number 70; Pages 19477) or you may visit http://dms.dot.gov.
    Comments received after the comment closing date will be included 
in the docket and we will consider late comments to the extent 
practicable. The FMCSA may, however, issue a final rule at any time 
after the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Safety 
Programs, (202) 366-9579, FMCSA, 400 7th Street, SW., Washington, DC 
20590. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Comments Invited

    This IFR is being adopted without prior notice and public comment. 
However, interested parties are invited to participate in this 
rulemaking by submitting written data, views, or arguments. All 
comments received, as well as a report summarizing each substantive 
public contact with FMCSA personnel on this rulemaking, will be filed 
in the public docket. The docket is available for public inspection 
before and after the comment closing date.
    See ADDRESSES above for information on how to submit comments.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires FMCSA to comply with small entity requests for 
information or advice about compliance with statutes and regulations 
within FMCSA's jurisdiction. Any small entity that has a question 
regarding this document may contact the person 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 September 11, 2001, several terrorist attacks were made against 
the United States. Those attacks resulted in catastrophic human 
casualties and property damage. In response to those attacks, the 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act was 
enacted on October 26, 2001.\1\ 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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    \1\ 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 security risk warranting denial of the license.\2\
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    \2\ The Secretary of Transportation delegated the authority to 
carry out the provisions of this section to the Under Secretary of 
Transportation for Security/Administrator. 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 hazardous materials 
endorsement, to carry out a background records check of the individual 
applying for the endorsement and, upon completing the check, to notify 
the Secretary of the results. The Secretary then determines whether the 
individual poses a security risk warranting denial of the endorsement. 
The term ``Secretary'' originally referred to the Department of 
Transportation, but these functions have been transferred to the 
Secretary of the Department of Homeland Security (DHS), and 
subsequently delegated by the Secretary to the TSA Administrator. 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.\3\ 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.\4\ These incidents are 
investigated by the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF) of the Department of Justice and referred, as 
appropriate, to the United States Attorneys.
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    \3\ Pub. L. 107-296, November 25, 2002, 116 Stat. 2280.
    \4\ 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 and agencies thereof, and which 
pertains 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.

The PATRIOT Act 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 and FMCSA issued interim final rules on May 5, 2003.\5\ 
The TSA rule established security threat assessment standards for 
determining whether an individual poses a security threat warranting 
denial of a hazmat endorsement for a CDL. Under the rules, 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.
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    \5\ 68 FR 23844 and 68 FR 23851.
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    The rules also established conditions under which an individual who 
has been determined to be a security threat could appeal the 
determination, and procedures TSA follows when

[[Page 63032]]

considering an appeal. In addition, the rules provide a waiver process 
for those individuals who otherwise could not obtain a hazmat 
endorsement because they had a disqualifying felony, or were 
adjudicated as a mental defective or involuntarily committed to a 
mental institution. Finally, the rules prohibit an individual from 
holding, and a State from issuing, renewing, or transferring, a hazmat 
endorsement for a CDL unless the individual met the TSA security threat 
assessment standards.
    The FMCSA rule places States on notice that failure to comply with 
those portions of the TSA rule applicable to States by November 3, 
2003, will result in the withholding by DOT of certain Federal-aid 
highway funds.
    The TSA rule requires States to begin collecting fingerprints from 
individuals applying for, renewing, or transferring a hazmat 
endorsement for a CDL on November 3, 2003, and to submit those 
fingerprints to TSA so that TSA can conduct fingerprint-based criminal 
history records checks (CHRCs).

Summary of Today's IFR

    Elsewhere in today's issue of the Federal Register, TSA is 
postponing the date on which States are required to collect 
fingerprints from individuals who are applying for, renewing, 
upgrading, or transferring a hazmat endorsement for a CDL from November 
3, 2003, to April 1, 2004. However, if a State requests a postponement 
of that date and provides a written justification, TSA may grant an 
extension, but in no case beyond December 1, 2004. FMCSA is therefore 
amending its rule to incorporate the same standard: States must comply 
with the TSA rule requiring the collection of fingerprints by April 1, 
2004, unless TSA authorizes a later date under 49 CFR 1572.5(c)(4). 
After this date, whatever it may be, States that fail to comply with 
the TSA rule risk the loss of Federal-aid highway funds. FMCSA and TSA 
are making this change for several reasons.
    TSA received comments from departments of motor vehicles and other 
agencies in over 23 States stating they have neither the infrastructure 
nor the funding to comply with the requirements of the rule. The main 
costs identified by States included the costs of purchasing 
fingerprinting equipment, and hiring and training personnel to operate 
the fingerprinting equipment. Most of the States requested Federal 
funding for these costs. The TSA rule discusses the cost issue in more 
detail.
    Many States also commented that compliance with the Patriot Act 
rule, specifically the fingerprinting requirements, would require 
legislative changes. In many States, the State legislatures meet only 
once a year with a few State legislatures meeting biennially. These 
States requested additional time to make necessary legislative changes.
    For these reasons, FMCSA and TSA are moving the date that States 
must begin collecting fingerprints to April 1, 2004, with the 
possibility of postponement to a later date.
    FMCSA is amending 49 CFR 383.141 paragraphs (a) and (c) to move the 
date on which States are required to collect fingerprints from 
individuals who are applying for, renewing, or transferring a hazmat 
endorsement for a CDL from November 3, 2003, to April 1, 2004, though 
TSA may extend the compliance date to not later than December 1, 2004. 
Section 383.141(c) requires States to notify drivers at least 180 days 
before the expiration date of a hazardous materials endorsement. 
Because FMCSA's May 5 IFR allowed only slightly more than 180 days 
before States were required to begin collecting fingerprints, part of 
which the States would need to establish notification procedures, Sec.  
383.141(c) provides that ``Before November 3, 2003, a State must give 
the holder of a hazardous materials endorsement as much advance notice 
as practicable'' [68 FR at 23850]. In view of today's postponement of 
the States' compliance date, which will allow them to give drivers a 
full 180 days of advance notice, the sentence quoted above has been 
deleted.

Rulemaking Analyses and Notices

Justification for Immediate Adoption

    FMCSA is issuing this IFR 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.'' If the agency fails to immediately adopt this interim final 
rule, States could lose certain Federal-aid funding due to the short 
implementation deadline for TSA requirements announced in the May 2003 
interim final rule (68 FR 23852) and an inability to meet those 
requirements due to lack of infrastructure and funding through no fault 
of their own and circumstances beyond their control.
    This IFR changes the date on which States are required to collect 
fingerprints from individuals who are applying for, renewing, or 
transferring a hazmat endorsement for a CDL. Because this IFR does not 
impose any new burdens on stakeholders, FMCSA believes that notice and 
comment procedures are ``unnecessary.'' Due to the short deadline, the 
agency finds good cause under 5 U.S.C. 553(d)(3) to make this rule 
effective upon publication.

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. FMCSA has determined that this is a significant 
regulatory action within the meaning of Executive Order 12866 and under 
the Department's regulatory policies and procedures because of 
substantial public interest. This rule does not impose any costs on any 
public, private, or government sector, therefore further economic 
analysis is unnecessary.

Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (RFA), as amended, 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.'' I certify that the IFR will not have a 
significant economic impact on a substantial number of small entities. 
As noted above, this IFR will not impose any costs on any public, 
private, or government sector.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), 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 IFR does not 
contain any information collection requirements.

Executive Order 13132 (Federalism)

    Executive Order 13132 requires FMCSA 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

[[Page 63033]]

federalism implications'' is 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, FMCSA 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.
    Although this IFR has direct effects on the States, they are not 
substantial because the IFR will continue the status quo while allowing 
States more time to comply with the May 5, 2003, interim final rules. 
Thus, FMCSA has determined that this IFR does not have sufficient 
Federalism implications to warrant the preparation of a Federal 
Assessment.
    As discussed in detail in the May 5 IFR [see 68 FR at 23847-23848], 
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 
Transportation Security Administration (TSA) rule implementing Sec. 
1012 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 Sec. 1012 rule.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards-related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety and security, are not considered 
unnecessary obstacles. The statute also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. FMCSA has assessed the potential effect of this IFR 
and has determined that it will not impose any costs on domestic or 
international entities and thus would have a neutral trade impact.

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 FMCSA 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. Moreover, 
section 205 allows FMCSA 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 IFR 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, FMCSA has not prepared a written 
assessment under the UMRA.

National Environmental Policy Act

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

Energy Impact

    FMCSA 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). FMCSA has determined that this IFR is not 
a major regulatory action under the provisions of the EPCA.

List of Subjects in 49 CFR Part 383

    Administrative practice and procedure, Commercial driver's license, 
Commercial motor vehicles, Highway safety, Motor carriers.

0
For the reasons set forth in the preamble, the FMCSA amends title 49, 
Code of Federal Regulations, Chapter III, as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES [AMENDED]

0
1. The authority citation for part 383 continues to read as follows:

    Authority: 49 U.S.C. 521, 31136, 31301 et seq., 31502; Sec. 214 
of Pub. L. 106-159, 113 Stat. 1766; Sec. 1012(b) of Pub. L. 107-56, 
115 Stat. 397; and 49 CFR 1.73.



0
2. Revise Sec.  383.141 paragraphs (a) and (c) to read as follows:


Sec.  383.141  General.

    (a) Applicability date. Beginning on April 1, 2004, this section 
applies to State agencies responsible for issuing hazardous materials 
endorsements for a CDL, and applicants for such endorsements. 
Individual State licensing agencies, pursuant to 49 CFR 1572.5(c)(4), 
may request an extension of the compliance date.
* * * * *
    (c) Individual notification. At least 180 days before the 
expiration date of the CDL or hazardous materials endorsement, a State 
must notify the holder of a hazardous materials endorsement that the 
individual must pass a Transportation Security Administration security 
screening process as part of any application for renewal of the 
hazardous materials endorsement. The notice must advise a driver that, 
in order to expedite the security screening process, he or she should 
file a renewal application as soon as possible, but not later than 90 
days before the date of expiration of the endorsement. An individual 
who does not successfully complete the Transportation Security 
Administration security screening process referenced in paragraph (b) 
of this section may not be issued a hazardous materials endorsement.
* * * * *

    Issued on: November 5, 2003.
Annette M. Sandberg,
Administrator.
[FR Doc. 03-28175 Filed 11-5-03; 2:44 pm]
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