[Federal Register Volume 69, Number 125 (Wednesday, June 30, 2004)]
[Rules and Regulations]
[Pages 39350-39372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14654]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 386, and 390

[Docket No. FMCSA-97-2180]
RIN 2126-AA07


Federal Motor Carrier Safety Regulations: Hazardous Materials 
Safety Permits

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

ACTION: Final rule.

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SUMMARY: The Federal Motor Carrier Safety Administration is 
establishing a national safety permit program for motor carriers that 
transport certain hazardous materials in interstate or intrastate 
commerce. This final rule implements provisions of Federal hazardous 
materials transportation law. The rule will promote safe and secure 
transportation of the designated hazardous materials and thereby 
improve motor carrier safety.

DATES: Effective: This rule is effective: July 30, 2004. Compliance: 
Compliance with this rule is required beginning January 1, 2005. The 
publication incorporated by reference in this final rule is approved by 
the Director of the Federal Register as of July 30, 2004.

FOR FURTHER INFORMATION CONTACT: Mr. Michael Johnsen, (202) 366-4111, 
Hazardous Materials Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 400 7th Street, SW., 
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 
p.m., EST, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: 

List of Topics

I. Background
II. Summary of Final Rule
III. Analysis of Comments
    A. General Comments
    B. Preemption of State Programs
    C. Qualification Based on State Permits
    D. List of Materials (Applicability)
    E. Duplication of Other Agency Programs
    F. Obtaining a Safety Rating
    G. Pre-Trip Inspections
    H. Route Plans
    I. Communications Plans
    J. Permit Documentation
    K. Enforcement
    L. Cost-Benefit Analysis
IV. Rulemaking Analyses and Notices

I. Background

    Federal hazardous materials transportation law, 49 U.S.C. 5101 et 
seq., was enacted ``to provide adequate protection against the risks to 
life and property inherent in the transportation of hazardous material 
in commerce.'' The Federal Motor Carrier Safety Administration (FMCSA), 
formerly part of the Federal Highway Administration (FHWA), is 
responsible for implementing certain provisions of this law, including 
Sec. 5105(e), Inspections of motor vehicles transporting certain 
material; Sec. 5109, Motor carrier safety permits; and Sec. 5119, 
Uniform forms and procedures.
    Section 5109 requires the U.S. Department of Transportation (DOT) 
to issue regulations for safety permits for transporting certain 
hazardous materials. A motor carrier must hold a safety permit issued 
by DOT and keep a copy of the permit or other proof of its existence in 
the vehicle, in order to transport certain hazardous materials in 
commerce or cause such materials to be transported in commerce by motor 
vehicle (49 U.S.C. 5109(a)).
    FHWA published three notices in the 1990s to enact a permitting 
rule. FHWA's notice of proposed rulemaking (NPRM) of June 17, 1993 (58 
FR 33418) was followed by notices in 1996 (61 FR 36016, Jul. 9, 1996) 
and 1998 (63 FR 15362, Mar. 31, 1998) addressing the role of States in 
implementing a unified permitting program State by State. FHWA's June 
1993 NPRM formed the basis of a supplemental notice of proposed 
rulemaking (SNPRM) published by FMCSA on August 19, 2003 (68 FR 49737), 
with a correction notice published September 11, 2003 (68 FR 53535). 
The proposals in the SNPRM were based on statutory requirements and on 
public comments to the previous Federal Register notices. For a 
complete discussion of the prior proceedings, including the notices 
published by FMCSA and FHWA, please see the background discussion in 
the SNPRM.
    The major proposals in the SNPRM are described below.

Hazardous Materials for Which a Safety Permit Would Be Required

    FMCSA proposed that a motor carrier would be required to hold a 
safety permit in order to transport in commerce any of the four 
hazardous materials specified in 49 U.S.C. 5109(b), in the same 
threshold quantities for which the carrier must submit a registration 
statement and pay a registration fee under 49 U.S.C. 5108(a)(1)(A)-(D). 
The cost-benefit analysis for the rulemaking considered two other 
options: (a) an expanded list of materials that are sometimes subject 
to additional regulations, such as infectious substances and Hazard 
Zone B toxics, and (b) all materials subject to

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the Research and Special Programs Administration (RSPA) security 
requirements.

Intrastate and Foreign Motor Carriers

    In the proposed rule, an intrastate carrier would be required to 
apply for a USDOT number and undergo a compliance review. The safety 
rating issued by FMCSA to an intrastate carrier would be used only for 
purposes of issuing a safety permit. Likewise, an intrastate carrier 
would not be required to comply with any Federal Motor Carrier Safety 
Regulations (FMCSRs) (49 CFR parts 390-399) to which it is not already 
subject.
    The definition of ``interstate commerce'' includes foreign 
commerce. Therefore, Canada- and Mexico-domiciled motor carriers 
transporting hazardous materials (HM) required to be permitted in the 
United States would be subject to the requirements proposed in the 
SNPRM.

Application Procedures

    FMCSA proposed to create a new form (Form MCS-150B) for a motor 
carrier to provide the limited additional information required for 
issuance of a safety permit. FMCSA proposed to phase in the safety 
permit program beginning January 1, 2005. The actual compliance date 
would depend on when the carrier is required to complete the MCS-150 
under Sec.  390.19(a). FMCSA did not propose to charge a fee for 
applying for a safety permit, but stated that it may consider the need 
to assess an application fee in the future, especially if the safety 
permit program is expanded to apply to motor carriers of additional 
types and quantities of hazardous materials.

Conditions for Issuing a Safety Permit

    FMCSA proposed in the SNPRM to require that a motor carrier have a 
``Satisfactory'' safety rating in order to obtain a safety permit. 
Appendix B to 49 CFR part 385 contains an explanation of the safety 
rating process including a list of violations that FMCSA considers 
``acute'' (where noncompliance is so severe as to require immediate 
compliance) and ``critical'' (where noncompliance relates to management 
and/or operational controls). The SNPRM also proposed additions to the 
list of acute and critical violations in 49 CFR part 385, appendix B, 
paragraph VII.
    FMCSA proposed two further conditions for issuing a safety permit: 
(1) the motor carrier must show that it has a satisfactory security 
program, and (2) the motor carrier must be (and remain) registered with 
RSPA. A satisfactory security program would apply to motor carriers 
transporting in commerce hazardous materials listed in the SNPRM.
    Finally, FMCSA also proposed issuing a temporary safety permit, 
valid for up to 270 days, to a motor carrier that does not have a 
safety rating but certifies it has a satisfactory security program and 
is operating in full compliance with the Hazardous Materials 
Regulations (HMRs; 49 CFR parts 171-180); the FMCSRs; comparable State 
regulations, if applicable; and minimum financial responsibility 
requirements in 49 CFR part 387 or in State regulations, as applicable. 
However, FMCSA would not issue a temporary safety permit to a motor 
carrier that, as indicated in the Motor Carrier Management Information 
System (MCMIS), has a crash rate in the top 30 percent of the national 
average; has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average; or is 
listed on FMCSA's SafeStat A, B, C, or D lists.

Permit Number and Evidence in the Vehicle

    FMCSA proposed that the carrier be required to maintain in the 
vehicle transporting a hazardous material a copy of the safety permit 
or another document (including a shipping paper) showing the permit 
number. The carrier's safety permit number would not be required to 
appear on the shipping paper.

Written Route Plan and Communication

    In the SNPRM, we proposed to revise 49 CFR 397.67(d) to require the 
carrier, or its agent, to prepare and provide its driver with a written 
route plan covering any shipment of a toxic-by-inhalation (TIH) 
material or liquefied natural gas for which a safety permit is 
required, in addition to all shipments of Division 1.1, 1.2, and 1.3 
materials. FMCSA proposed (in Sec.  385.415) that the written route 
plan be carried in the vehicle and followed, unless an alternate route 
is required by a law enforcement officer or emergency conditions. A 
phone number would need to be provided where a company official or 
representative could provide route plan and other information about the 
shipment to the caller. This phone number would have to be maintained 
during the course of transportation of permitted loads.
    In addition, FMCSA proposed a communications plan requiring the 
driver to communicate with the carrier at least once every two hours 
and any time there is a deviation from the written route plan. The 
motor carrier would be required to contact law enforcement officials if 
there had been no communication from its driver for more than three 
hours.
    Finally, FMCSA proposed to require the motor carrier to maintain a 
record of all communications with the vehicle driver during 
transportation of a hazardous material for which a safety permit is 
required. The record would be required to contain the name of the 
driver, identification of the vehicle, the hazardous material(s) being 
transported, the date and time of each communication, and each period 
of more than two hours without a communication with the driver, 
including a statement of the facts or conditions that prevented 
communication for more than two hours.

Pre-Trip Inspections

    To implement the pre-trip inspection requirement in 49 U.S.C. 
5105(e), FMCSA proposed inspection standards similar to those contained 
in the North American Standard (NAS) Level VI Inspection developed by 
the Commercial Vehicle Safety Alliance (CVSA) for radioactive 
shipments. The pre-trip inspection would have to be performed by a 
government inspector--that is, an inspector employed by or under 
contract to a Federal, State or local government. The inspection would 
be required to cover all applicable requirements in the HMRs and in the 
FMCSRs--including 49 CFR parts 383 (commercial driver's license), 391 
(driver qualifications), 395 (hours of service), 393 and 396 (vehicle 
condition)--or compatible State regulations. The inspection also would 
be required to cover provisions in the HMRs on the transportation of 
radioactive materials (49 CFR parts 171, 172, 173, and 178) and 
registration (49 CFR part 107, subpart G).

Denial, Suspension, or Revocation of a Safety Permit

    FMCSA proposed that a safety permit would be subject to suspension 
or revocation if a carrier fails to maintain its ``Satisfactory'' 
safety rating, or under other specified circumstances. These include: 
(1) Failure to submit a renewal application or providing any false or 
misleading information on a required application form; (2) failure to 
maintain a satisfactory security plan; (3) failure to comply with an 
out-of-service order; (4) failure to comply with the FMCSRs, HMRs, 
compatible State requirements, or an order issued under any of these, 
in a manner that shows the carrier is not fit to transport the 
hazardous materials for which a safety permit is required; (5)

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loss of the carrier's operating rights; and (6) suspension of the 
carrier's registration for failure to pay a civil penalty or to abide 
by a payment plan.
    The SNPRM proposed procedures for administrative review of a 
denial, suspension, or revocation of a safety permit. A motor carrier's 
rights to administrative review would depend on the reason for denial, 
suspension, or revocation.

II. Summary of Final Rule

    This final rule amends the FMCSRs to incorporate the following new 
provisions for a safety permit program:

Hazardous Materials for Which a Safety Permit Would Be Required

    The final rule adopts a slightly revised list comprised of 
hazardous materials requiring a safety permit. The new list compiles 
the statutory list and additional explosive and toxic-by-inhalation 
(TIH) materials in certain quantities as appropriate. Specifically, a 
permit will be required for:
    1. Radioactive Materials--A highway route-controlled quantity of 
Class 7 materials.
    2. Explosives--More than 25 kg (55 pounds) of a Division 1.1, 1.2 
or 1.3 material, or an amount of a Division 1.5 material requiring a 
placard under 49 CFR part 172, subpart F.
    3. Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--Hazard 
Zone A materials in a packaging with a capacity greater than 1 liter 
(0.26 gallons); a shipment of Hazard Zone B materials in a bulk 
packaging (capacity greater than 450 L [119 gallons]); or a shipment of 
Hazard Zone C or D materials in a bulk packaging having a capacity 
equal to or greater than 13,248 L (3,500) gallons.
    4. A shipment of compressed or refrigerated liquid methane or 
natural gas or other liquefied gas with a methane content of at least 
85 percent, in a bulk packaging having a capacity equal to or greater 
than 13,248 L (3,500 gallons) for liquids or gases.

Intrastate and Foreign Motor Carriers

    The safety permit program will apply to intrastate as well as 
interstate carriers. In addition, the program will apply to foreign 
carriers. Intrastate carriers must apply for a USDOT number and will be 
subject to a compliance review. The safety rating issued to the 
intrastate carrier is for the safety permit process only and, unless 
specifically noted, will be calculated based on State violations 
equivalent to FMCSA's list of critical and acute violations. Beyond the 
requirements to obtain a USDOT number and submit to a compliance 
review, the intrastate carrier seeking a safety permit will generally 
not be subject to any additional safety regulations under the FMCSRs 
(such as driver qualification requirements in 49 CFR part 391) that did 
not apply to such carriers before this final rule. Several sections of 
the regulations are being modified to include intrastate motor carriers 
subject to the permitting requirements. This revised text includes 
Sec.  385.3 (definitions), Sec.  385.5, and Appendix B to Part 385.

Application Procedures

    The safety permit program will require hazmat carriers to complete 
Form MCS-150B in lieu of Form MCS-150. In addition, permitted carriers 
must complete the MCS-150B in lieu of the MCS-150 to renew both their 
permit and their USDOT number, according to the USDOT number renewal 
schedule. Implementation of the safety permit program will be phased in 
beginning January 1, 2005. The actual compliance date will depend on 
the schedule in Sec.  390.19. A motor carrier not involved in the 
transportation of a permitted material on January 1, 2005, will need to 
apply for and receive a safety permit before it can transport any 
permitted material. FMCSA will not charge a fee for applying for a 
safety permit under this final rule.

Conditions for Issuing a Safety Permit (Security Program)

    Motor carriers must have a ``Satisfactory'' safety rating in order 
to obtain a safety permit. In addition, until we complete a compliance 
review, FMCSA will not issue a safety permit to a motor carrier that 
has, as indicated in the agency's Motor Carrier Management Information 
System (MCMIS), a crash rate in the top 30 percent of the national 
average, or a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average. A motor 
carrier must have a satisfactory security program in place and must be 
registered with RSPA. A satisfactory security program consists of: (1) 
A security plan as prescribed in 49 CFR part 172, subpart I; (2) a 
means of communication that will enable the vehicle operator to contact 
the motor carrier during the course of transportation; and (3) a means 
of providing hazardous materials employees with security training as 
required in 49 CFR part 172.
    FMCSA will adopt the proposed changes to the list of acute and 
critical violations in 49 CFR part 385, appendix B, paragraph VII, with 
some corrections.
    Temporary safety permits will be issued to motor carriers without 
safety ratings, but only for a period of 180 days. In addition, a 
temporary safety permit will only be issued to companies that certify 
they have a satisfactory security program and are operating in full 
compliance with the HMRs, FMCSRs, or comparable State regulations. 
FMCSA will not issue a temporary safety permit to a motor carrier that 
has, as indicated in MCMIS, a crash rate in the top 30 percent of the 
national average, or a driver, vehicle, hazardous materials, or total 
out-of-service rate in the top 30 percent of the national average.

Permit Number and Evidence in the Vehicle

    We are requiring that the carrier's safety permit number appear on 
the shipping paper, on a copy of the safety permit, or on other 
documents maintained in the vehicle transporting a hazardous material 
requiring a safety permit.

Written Route Plan and Communication

    We are maintaining the written route plan required for radioactive 
materials set forth in 49 CFR 397.101, and for explosives in Sec.  
397.19 of the same title. Written route plans will not be expanded to 
include the other materials that require safety permits. However, we 
are requiring that while a permitted material is in transportation, the 
driver must have the telephone number of an employee or representative 
of the motor carrier who is able to determine whether the vehicle is on 
the general route for delivery of the material as expected by the 
company. The phone number must be made available to law enforcement 
officials upon request.
    We are requiring companies holding safety permits to develop a 
communications plan that allows for the periodic tracking of the 
shipment. This may be accomplished either through phone calls or radio 
calls placed by the driver or through an electronic monitoring or 
tracking system. At a minimum, the communication plan must require 
contact from the driver or electronic tracking equipment at the 
beginning and end of transportation (during loading or unloading of a 
permitted material) or at the beginning and end of each duty period. If 
the driver is making the calls, he or she should make them during 
periodic rests (taken for reasons other than making the call), or at 
the beginning and end of each duty period while not operating the 
vehicle or obtaining necessary rest. If the company has any reason to 
suspect the shipment has been stolen, diverted, or otherwise off-route 
because of a lack or delay of contact from the

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driver, or for other reasons, then the company should contact the 
Transportation Security Administration's (TSA) Transportation Security 
Coordination Center at (703) 563-3236 or (703) 563-3237.
    We are also requiring that a record of communications be kept, by 
either the driver (for example, recorded in the logbook) or the 
company, containing the time of the call and the shipment location. 
These records must be kept, either physically or electronically, for at 
least six months at the company's principal place of business and must 
be readily available to employees.

Pre-Trip Inspections

    We are adopting the proposal requiring that shipments containing 
highway route-controlled Class 7 (radioactive) materials undergo a pre-
trip inspection. The standards for this inspection are contained in the 
North American Standard (NAS) Level VI Inspection for Radioactive 
Shipments. The pre-trip inspection must be performed by a Federal, 
State, or local government inspector, or an inspector under contract 
with a Federal, State, or local government. The inspector must have 
completed an appropriate training program of at least 104 hours, 
including at least 24 hours of training in conducting radiological 
surveys on inspecting vehicles transporting highway route-controlled 
quantity (HRCQ) radioactive materials. The inspection must cover all 
applicable requirements in the HMRs; the FMCSRs--including 49 CFR parts 
383 (commercial driver's license), 391 (driver qualifications), 395 
(hours of service), 393 and 396 (vehicle condition)--or compatible 
State regulations; and provisions in the HMRs on the transportation of 
radioactive materials (49 CFR parts 171, 172, 173 and 178) and 
registration (49 CFR part 107, subpart G).

Denial, Suspension, or Revocation of a Safety Permit

    We are implementing a process to deny, suspend, and revoke safety 
permits in this final rule. A safety permit will be denied if the 
carrier does not have a ``Satisfactory'' safety rating, or if any of 
the criteria for suspension or revocation are discovered in the 
application process. A safety permit will be suspended or revoked when 
the carrier: (1) Does not have a ``Satisfactory'' safety rating; (2) 
fails to submit a renewal application or provides false or misleading 
information on a required application form; (3) fails to maintain a 
satisfactory security plan; (4) fails to comply with an out-of-service 
order; (5) fails to comply with the FMCSRs, with the HMRs or compatible 
State requirements, or with an order issued under any of these 
regulations showing the carrier is not fit to transport the permitted 
hazardous materials; (6) loses its operating rights; or (7) has its 
registration suspended for failure to pay a civil penalty or abide by a 
payment plan. The decision to suspend or revoke a permit will be based 
on the severity of the violations.
    The first time a motor carrier is found to be in violation of any 
of these requirements, the permit will be suspended until the problems 
are rectified. The next time a company is found to be in violation of 
these requirements, the permit will be revoked for 365 days.

III. Analysis of Comments

    In response to the SNPRM, FMCSA received 27 written comments from 
State governments, motor carriers, associations, a public interest 
group, and individuals. These comments have been considered in the 
preparation of this final rule, as discussed below. The comments have 
been arranged by topic.

A. General Comments

    Several commenters, including American Chemistry Council (ACC), Air 
Products and Chemicals, Inc. (Air Products), American Trucking 
Associations (ATA), American Pyrotechnics Association (APA), and Baker 
Petrolite Corporation (BPC), praise the agency for the intended effect 
of the SNPRM to promote the safe and secure transportation of the 
designated hazardous materials and thereby enhance motor carrier 
safety. However, none of the commenters believe the proposal should be 
finalized without further changes. Most of these comments are focused 
on the additional burden the proposed rules would place on the 
industry. Air Products and Department of California Highway Patrol 
(CHP) argue that the safety permit itself will not improve public 
safety. Air Products states it is the implementing requirements 
necessary to satisfy the intent of the safety permit that are 
important, and that these requirements must be clearly defined, 
effective, and workable for the motor carrier. The Michigan Department 
of Environmental Quality (Michigan DEQ) questions whether the proposed 
safety permit rule would have a significant impact on the safe 
transportation of hazardous materials.
    FMCSA Response: We agree that the supporting requirements, and the 
ability to suspend, revoke, or deny a permit for companies found 
negligent in their responsibilities to transport hazmat safely and 
securely, provide the foundation for an effective permit program. We 
recognize the importance of constructing a permit program that 
minimizes complexity and maximizes security and safety benefits. FMCSA 
disagrees with the assertion that the permit by itself will not improve 
safety. The issuance of a permit is tied to a company's safety 
performance. Companies with a record of excessive safety concerns will 
not be issued a permit.
    The Michigan DEQ, the National Small Shipments Traffic Conference 
(NASSTRAC), the Institute of Makers of Explosives (IME), APA, and CHP 
believe that an additional permitting program will only add to the 
burden on the industry by duplicating the existing permit efforts by 
the States without providing any appreciable risk reduction or security 
benefit. The Conference on Safe Transportation of Hazardous Articles 
(COSTHA) states that the regulated community may find it extremely 
difficult, if not impossible, to meet the minimum requirements of the 
proposed permit program necessary for obtaining and holding a permit.
    FMCSA Response: FMCSA believes that we have been responsive to the 
specific concerns raised by commenters, and that, with the proposals 
adopted for this final rule, the regulated community will be able to 
meet the requirements to obtain and hold safety permits. We have 
analyzed commenters' concerns and adopted a balanced program that 
maximizes benefits while attempting to minimize burden on the regulated 
industry.
    Advocates for Highway and Auto Safety (Advocates) states that this 
and similar recent rulemaking actions by FMCSA have been forged in a 
vacuum, without acknowledging recent research into transportation 
security. Advocates says that even though the SNPRM provides an 
opportunity for FMCSA to adopt aggressive safety and security measures, 
the agency ignores the realities of the potential threats that 
hazardous materials pose to people, institutions, and the environment.
    FMCSA Response: While FMCSA appreciates Advocates' suggestion to 
adopt aggressive safety and security measures and has striven to create 
an aggressive safety program, we note that the development of these 
regulations has occurred over many years, involving dialog between not-
for-profit organizations, States, and industry representatives through 
a number of notices in the rulemaking process. In addition, these rules 
were created in consultation with a number of

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government agencies having jurisdiction over and particular interest in 
hazmat safety and security, and we have made a concerted effort to 
coordinate and unify efforts. The requirements for obtaining and 
maintaining a permit are commensurate with the level of safety 
appropriate to the high hazards posed by the materials covered under 
the program. The permit program is one piece of a comprehensive 
security and safety strategy including RSPA's security rulemaking, 
FMCSA's own research into security technologies, and the collaborative 
HM-232A rulemaking addressing multimodal security concerns.
    Six commenters (ATA, COSTHA, CGA, IME, Advocates, and NASSTRAC) 
raise the issue that, rather than submit to the proposed permit 
requirements, carriers may refuse to ship hazardous materials. COSTHA 
and IME state that if legitimate carriers refuse to carry hazardous 
materials, then the transportation of these products may shift to 
noncompliant carriers or other modes of transportation. IME points to 
the example of the recent impact of security regulations issued by the 
Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) on the 
commercial transportation of explosives.
    Fisher Scientific Company LLC (Fisher Scientific) states that some 
of its carriers have already indicated they will not be securing 
permits for transporting hazardous materials. As a shipper of many 
types of hazardous materials, Fisher Scientific tries to leverage its 
transportation costs by having one carrier satisfy all of its 
transportation needs. If carriers refuse to transport hazardous 
materials, Fisher Scientific's costs will increase because it will need 
to hire multiple carriers.
    FMCSA Response: While we understand the possible effects a 
permitting program may have on the hazardous materials transportation 
industry, we also recognize that many factors play a role in a 
company's decision to carry hazardous materials. Permits are already 
required in 40 States, and recent security measures by RSPA, TSA, and 
other agencies may have a greater influence than today's final rule on 
a company's decision to carry hazmat. We believe commenters may have 
overestimated the impact this permitting rule will have on hazardous 
materials carriers. FMCSA has observed the development of companies 
specializing in hazardous materials transportation that handle all 
aspects of a hazmat shipment, including routing, tracking, and 
regulatory compliance. While it is possible that the nature of 
hazardous materials shipping may change due to new security awareness, 
FMCSA believes the market is well equipped to meet the ever-present 
demand for the transportation of hazardous materials in the United 
States.
    In any case, FMCSA took these comments into consideration in 
developing the final rule and believes that the safety permit program 
adopted does not present the same burden as that which the SNPRM may 
have presented. FMCSA has also considered the effects on the industry 
in its cost-benefit evaluation for this rulemaking.
    National Tank Truck Carriers (NTTC) and Overnite Transportation 
(Overnite) request that shippers be included as active participants in 
the permit program. NTTC and Overnite are concerned that only the 
carrier bears responsibility and liability under the proposed permit 
requirements, while in fact the shipper plays an integral role. NTTC 
points out that Section 5109 of the Hazardous Materials Transportation 
Act (HMTA) includes a direct reference to ``Shipper Responsibility'' 
and gives the Secretary unfettered discretion to determine the scope of 
the permit program.
    FMCSA Response: FMCSA's direct jurisdiction is over carriers rather 
than shippers. Although Section 5109 references shipper responsibility 
and gives the Secretary discretion to determine the scope, our 
jurisdiction cannot reach shippers (unless the company is also a 
carrier). This authority was specifically delegated to RSPA.
    In comments concerning the security aspects of this rule, ATA 
states, ``* * * it is important to recognize that there has never been 
a terrorist attack in the United States using a registered motor 
carrier transporting one of the designated hazardous materials.''
    FMCSA Response: FMCSA points out that before the 9/11 attacks, 
terrorists had not attempted an attack of this magnitude. Airport and 
airline security had been identified prior to 9/11 as issues needing 
action, but it was only after 9/11 that cockpit doors were fully 
secured. We cannot limit our actions to prevent only the type of 
terrorist attacks that have already occurred. FMCSA strongly believes 
it is appropriate for the agency to address the transportation of these 
high-hazard materials in a proactive manner. Through this permitting 
program, FMCSA believes it is reducing the possibility of ``bad 
actors'' carrying high-hazard materials, and thereby helping to avoid 
accidental and purposeful releases.

B. Preemption of State Programs

    Five commentors (IME, Advocates, ATA, NASSTRAC, and an individual) 
state that the proposed rule should preempt State permitting programs 
and eliminate the burden placed on hazardous materials motor carriers 
by dissimilar, redundant, non-Federal permitting programs unilaterally 
imposed by States. One commenter, the Alliance for Uniform Hazmat 
Transportation Procedures (Alliance), generally agrees with FMCSA's 
analysis of limited preemption and supports the continuing role of 
State permit programs as outlined in the SNPRM. The Alliance believes 
that the State Uniform Program could accomplish the objectives of the 
proposed Federal safety permit. The Alliance requests that FMCSA 
specifically name Alliance's uniform program as not preempted by the 
proposed regulations, and as a ``safe haven'' for States wishing to 
regulate hazardous materials transportation.
    An individual commenter asserts that the State permit programs are 
``really just a superficially legal means to gather revenue (taxation) 
from out of state hazmat carriers.'' This commenter says that if DOT 
refuses to preempt State programs, it should at least ``make them 
uniform in nature, limit the fees to the cost of administration, and to 
eliminate totally the county permit programs.''
    IME states that the current state of hazmat motor carrier 
permitting requirements does not look much different than it did in 
1990, when Congress enacted 49 U.S.C. 5109 and 5119 on permit 
authority, and that the proposed regulations do nothing to improve the 
situation. IME, Advocates, and the NASSTRAC point out that Congress 
expressly gave DOT authority to preempt State hazardous materials laws 
to ensure State laws achieve greater uniformity. The NASSTRAC states 
that, to the extent similar or other excessively burdensome or 
counterproductive requirements exist at the State level, it is a 
misguided form of federalism to forgo the opportunity to address them 
in this proceeding.
    ATA and Advocates assert that the agency's decision in the SNPRM 
not to move forward with a uniform permitting system for intrastate 
transportation amounts to an unsubstantiated statement that such a 
program would be impossible to administer.
    ATA and Advocates also point out that DOT has exercised its 
preemption authority in the past, through RSPA's final rule requiring 
that all intrastate shippers and carriers comply with RSPA's 
implementing regulations for hazardous material motor carrier

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transport (62 FR 1208, Jan. 8, 1997). RSPA's final rule expressly 
preempts State laws, regulations, and other administrative mechanisms 
that conflict with prevailing Federal hazmat law and regulation. Both 
commenters noted RSPA is clearly fulfilling the congressional direction 
of the Hazardous Materials Transportation Uniform Safety Act of 1990 
(HMTUSA) by applying the broad authority granted to the Secretary to 
achieve more intrastate-interstate hazmat transportation uniformity. 
ATA and Advocates argue that FMCSA has the same statutory authority to 
establish more uniformity in the area of motor carrier hazardous 
materials transportation in this rulemaking.
    IME asserts that FMCSA's summary of the background on this 
rulemaking is incomplete and misleading. IME states:

In 1990, Congress directed the Secretary of Transportation to 
implement a motor carrier safety permit for motor carriers of 
certain hazardous materials and, at the Secretary's discretion, to 
expand the list of materials triggering a permit by November 1991--
the ``Sec.  5109'' permit * * * FMCSA did not even release a 
proposed rulemaking until 1993.

    IME states that the proposal was criticized as inadequate by the 
regulated community, States and safety advocates, and that, in the 
meantime, a congressionally mandated working group of States was 
convened to develop uniform forms and procedures for States to use to 
register and permit hazmat motor carriers--the ``Sec.  5119'' or 
``uniform'' permit. According to IME, the working group met its 1993 
statutory deadline to submit a report to Congress on the feasibility of 
a Uniform Permit. IME states that the working group recommendations 
supported a Uniform Program, and that Congress directed the Secretary 
to ``prescribe regulations to carry out the recommendations contained 
in the report.'' According to IME, all that remained to implement this 
section was for the Secretary to identify those ``recommendations with 
which the Secretary agrees.'' IME asserts that, as with ``the Sec.  
5109 permit, including the Sec.  5105 inspection requirement for 
certain vehicles carrying radioactive material, the Sec.  5119 permit 
has languished at FMCSA.''
    ACC, Minnesota Department of Transportation, CVSA, and the Alliance 
also support a uniform program. The Alliance comments:

    States belonging to the Uniform Program urge the FMCSA to more 
closely consider the Uniform Program as an alternative to the 
proposed federal permit. The Uniform Program is an established, 
demonstrated program that could achieve the same goals as the 
proposed federal permit in a more cost-effective and efficient 
manner. Seven states are already successfully using this program 
and, with a few minor modifications which the Alliance is prepared 
to make, it could easily be extended to cover all shipments of the 
four types of materials covered under the federal safety permit. The 
Alliance proposes a consultation with FMCSA to work out the details 
of such an approach.

    In view of its comments, the Alliance ``requests that FMCSA defer 
any decision relating to a uniform program until misunderstandings 
related to the Alliance Uniform Program is alleviated through 
consultation with Alliance members (sic) states and the Alliance 
Governing Board.''
    ATA states that the most efficient way to ``* * * harmonize the 
myriad of existing hazardous materials permits and relieve the trucking 
industry of a significant administrative burden * * *'' is to 
incorporate any new Federal requirements into the existing Uniform 
Permitting Program, authorized by 49 U.S.C. 5119. COSTHA also urges 
that a ``uniform program be applied nationally and to preempt a myriad 
of state and local permitting systems.''
    FMCSA Response: FMCSA recognizes the authority of States to 
implement hazardous materials permits. For the materials covered by 
FMCSA's safety permitting program, States are preempted only if 
implementing a program with more stringent operational requirements 
than prescribed in this final rule. This addresses commenters' concerns 
for a nationwide uniform program for the materials covered by the 
Federal safety permit. However, this does not prevent States from 
permitting other materials, such as hazardous wastes. This approach is 
similar to RSPA's administration of its registration program, which 
preempts State registration programs for the list of materials covered 
by the RSPA registration program while allowing States to implement 
other types of registration programs.
    A uniform permit program for these identified materials is 
essential to provide for ease of interstate transportation. FMCSA 
acknowledges the Alliance program is not currently identical to the 
program required in this final rule. However, FMCSA has been assured by 
the Alliance that its program will mirror the FMCSA program in the 
future, thus aligning States currently working on a State-by-State 
uniform program with the Federal permit program. If a State's program 
is equivalent to the Federal program, then FMCSA will issue a safety 
permit based on the successful issuance of the comparable State permit.

C. Qualification Based on State Permit

    Proposed Sec.  385.411 would allow FMCSA to issue a Federal safety 
permit, without further inspection or investigation, when it can verify 
that a State has a safety permit program that is equivalent to the 
requirements in 49 U.S.C. 5109. Air Products and the Alliance both 
support this proposal. Short of adopting the Alliance Uniform Program, 
the Alliance supports the FMCSA proposal to ``issue a federal safety 
permit to a carrier without further inspection or investigation when 
FMCSA is able to verify that the carrier holds a safety permit issued 
by a State under a program that is equivalent to the federal safety 
permit program.'' The Alliance believes this is efficient and that it 
recognizes existing expertise in State programs. The Alliance also 
believes that the FMCSA proposal cuts the burden on carriers and 
recognizes the dual nature of State-Federal regulation of hazardous 
materials transportation.
    ATA comments that the proposed rule states that where a motor 
carrier participates in an equivalent State program, the carrier must 
still apply for the Federal safety permit, and FMCSA will immediately 
issue the permit without further inspection or investigation. ATA 
points out that at this time there are no ``equivalent'' State permit 
programs.
    Advocates states it is not completely averse to FMCSA's proposed 
reliance on prior State safety permits. However, Advocates comments 
that the preamble does not explaining how the agency will ensure that 
State permits are in fact equivalent to the Federal program 
requirements, and how often determinations of equivalence will be 
performed through frequent reevaluations of State permitting practices.
    Alliance comments that, to work cooperatively with FMCSA, it is 
considering an upgrade to its program to cover elements of the new 
Federal permit that it currently lacks. This would consist primarily of 
adding questions related to a carrier's security plan and shipment 
tracking system. Once this program revision is in place, motor carriers 
with permits from Alliance member States and that transport hazmat in 
Alliance member States would have received scrutiny equivalent to the 
Federal permit. Alliance believes its program could substitute for the 
Federal safety permit.
    FMCSA Response: FMCSA agrees with ATA that there are no current 
equivalent State programs. However, we have been assured by the 
Alliance that

[[Page 39356]]

it is dedicated to cooperating with FMCSA in developing equivalent 
programs. FMCSA will identify State programs that match the Federal 
safety permit program. These programs must have the same requirements 
as set forth in this final rule. If a carrier is issued a permit by a 
State identified as having the same requirements as the Federal 
requirements, FMCSA will automatically issue the carrier a Federal 
permit. Thus, individual States (including those in the Alliance) will 
be able to administer their registration programs, as long as the State 
program is identical to the requirements in this final rule for the 
materials covered by this final rule. FMCSA looks forward to the 
Alliance's adjusting its program to facilitate compliance and 
uniformity between State and Federal programs.

D. List of Materials (Applicability)

    Twelve comments address the issue of applicability. Six commenters 
(Air Products, NTTC, ATA, Distilled Spirits Council of the United 
States (DISCUS), NASSTRAC, and ACC) agree with FMCSA's proposal not to 
expand the statutory mandated list of hazardous materials for which a 
permit is required. Three commenters (Advocates, IME, and Onyx 
Environmental Services (Onyx)) believe that FMCSA should address the 
need to permit coverage beyond the minimum mandated in 49 U.S.C. 5109.
    IME states, ``FMCSA's determination to simply go with the section 
5109 statutory list is not dictated by current realities.'' IME adds 
that in developing an appropriate list of materials for a safety/
security permit and accompanying operational restrictions, FMCSA could 
consider ``the predictability of shipments, the volume per shipment or 
package, the population centers traversed, the number and distance of 
trips, the proximity of significant landmarks or public events, and the 
level of security risk as determined by the Department of Homeland 
Security.''
    ATA believes that FMCSA should ``raise the threshold quantities 
used to trigger a motor carrier's obligation to obtain a federal safety 
permit.'' It states, ``* * * for example, it is unlikely that 55 lbs. 
of explosives or 1 liter of PIH material will cause damage approaching 
that of the Oklahoma City bombing.''
    APA, Salt River Valley Water Users' Association, and Salt River 
Project Agricultural Improvement and Power District (SRP) state that 
the scope of the proposed safety permit program is unwarranted and 
unfair. SRP proposes that the rule be modified to apply only during 
transportation of hazardous materials in excess of 500 gallons or more 
than 75 road miles in a 12-hour period.
    Advocates states that ``* * * unfortunately, the FMCSA has chosen 
to cover only the lowest possible number of motor carriers by limiting 
the regulation essentially to only the statutory minima specified by 
Congress.'' Advocates cites the 13-year period since the passage of the 
legislation, and in particular the two years since September 11, 2001, 
as reasons to urge FMCSA ``in the strongest possible terms to 
reconsider this unrealistic abbreviation of its oversight, approval, 
and enforcement role.'' Advocates also recommends that ``FMCSA should 
parallel at least the requirements of the RSPA security plan final rule 
with identical coverage for the federal safety permit program.'' Onyx 
mirrors these comments by suggesting that FMCSA adopt the list in Sec.  
172.800(b).
    FMCSA Response: A number of considerations went into the 
development of the list adopted by FMCSA in this final rule. Indeed, in 
determining this list for applicability to the safety permit 
requirements, FMCSA analyzed the risks and potential damage various 
hazardous materials in different quantities could inflict if used 
maliciously or as a consequence of an accidental release. We used 
information from different sources to piece together a coherent picture 
on the possible risks these quantities of hazardous materials pose. For 
example, FMCSA disagrees with ATA about the effects one liter of a TIH, 
Hazard Zone A, could have on a population in an enclosed environment, 
or that 55 pounds of some Division 1.1 explosives would not produce 
significant damage to vital structures.
    We also note that tying permits to distance traveled and time in 
transit (in addition to the basic criteria concerning amounts and types 
of materials) could pose significant logistical challenges to the 
implementation and enforcement of a permit requirement.
    FMCSA reviewed risk analysis for hazardous materials safety, and 
developed risk assessments for accidents and terrorist strikes using 
hazardous materials. In addition, FMCSA considered the list of 
materials that Congress specifically mentioned in the statutory 
requirements for the permitting rule. The list developed for this final 
rule is the result of identifying not only materials that present the 
highest hazards in transportation, but also materials that pose the 
largest risks for human casualties and damage to property and the 
environment if used by a terrorist or militant. These materials also 
generally face a higher level of regulation in the HMRs and FMCSRs. In 
addition, the list of materials was developed in consultation with RSPA 
officials. The FMCSA safety permitting program materials list is a 
subset of those materials identified by RSPA's security requirements. 
Every effort has been made to fit the permit program into the larger 
realm of hazardous materials safety and security regulations.

E. Duplication of Other Agency Programs

    NTTC, ATA, APA, Onyx, ACC, Alliance, and Minnesota Department of 
Transportation recommend that program duplication could be 
substantially eliminated if the FMSCA permitting program were somehow 
combined with the RSPA registration program. As referenced above, 
Alliance's ``first recommendation is for FMCSA to use the existing 
Alliance program to achieve the purposes of the proposed federal safety 
permit.'' Alternatively, Alliance agrees with commenters who suggest 
using the existing RSPA annual registration program rather than 
creating a new and separate system.
    NTTC states that, with certain amendments, the FMCSA permitting 
program can prove a marginal improvement to the Administrator's 
comprehensive regulatory program despite its inherent redundancy with 
State programs and its overlap with the current ``hazmat carrier/
shipper registration program'' (administered by RSPA).
    Alliance, IME, Air Products, the Compressed Gas Association (CGA), 
Onyx, and ACC state that the proposed new form MCS-150B is unnecessary 
because it largely duplicates existing form MCS-150. Most of these 
commenters recommend that any additional information necessary could be 
obtained by adding to the current form. For example, IME states, ``* * 
* only nine of the 28 data elements on the proposed form MCS-150B 
require information that is not already reported on Form MCS-150.'' In 
addition to questioning the need for two separate application forms, 
Onyx requests that the term ``HM incidents'' be defined because item 20 
on form MCS-150B requests information on any hazardous materials listed 
in question 18.
    FMCSA Response: It was FMCSA's intent in the SNPRM to propose that 
the MCS-150B be completed in place of the MCS-150. Those entities 
seeking a safety permit would complete MCS-150B instead of MCS-150. 
This way, entities that do not transport permitted materials would not 
be presented with the fields on the form pertaining to the

[[Page 39357]]

permit application process, and carriers seeking a permit would only 
have to complete one form for FMCSA. In addition, the question asking 
about incidents over the last 2 years was eliminated because that 
information could be determined within DOT.
    We disagree with commenters that the safety permit program 
administered by FMCSA should be combined with the RSPA registration 
program. The two programs serve completely different purposes and 
require significantly different types of information from motor 
carriers. A combined application form could confuse applicants and 
result in serious data and financial management problems. In addition, 
the registration program does not involve a safety or security 
evaluation of the covered carriers, and thus provides no enforcement 
mechanism for companies that do not comply with safety and security 
requirements.
    There are several barriers to combining this permitting application 
process with RSPA's registration process, including the differences in 
entities applying for registration and the safety permit. However, 
FMCSA, RSPA and other DOT agencies are committed to reducing the 
paperwork burden resulting from the application process under the ``e-
commerce'' initiative. FMCSA, along with other government agencies 
including RSPA, attempts to ease the burden by providing on-line 
application procedures. FMCSA was able to reduce the paperwork 
internally by replacing the MCS-150 with the MCS-150B. Future efforts 
to streamline related application processes are constantly being 
considered.

F. Obtaining a Safety Rating

    Under proposed Sec.  385.407(a), a motor carrier must have a 
``Satisfactory'' safety rating in order to obtain a safety permit. CGA, 
Air Products, ATA, Advocates, NASSTRAC, CVSA, and Alliance, while 
generally supportive of the Satisfactory rating concept, raise 
questions as to how the concept will work in practice.
    CGA, Air Products, Alliance, and NASSTRAC question FMCSA's ability 
to act promptly either to determine a carrier's initial eligibility for 
a Satisfactory safety rating or to reestablish that rating when it has 
been lost and the carrier has taken steps to remedy the problem.
    Advocates opposes the proposed issuance of a temporary safety 
permit for up to 270 days. Advocates ``believes that this proposed 
feature of the supplemental proposed rule has numerous pitfalls both 
for safety and security, and that it would be unwise public policy to 
allow a carrier without a compliance review and ``Satisfactory'' safety 
rating nevertheless to secure a permit that would be valid for 9 months 
* * *.''
    FMCSA Response: FMCSA agrees that 270 days is too long for a 
temporary permit. Carriers requiring a safety permit will receive a 
compliance review over the two-year phase in period within 180 days of 
initial application instead of the proposed 270 days. If a safety 
permit is revoked or suspended because of problems with the safety 
rating, procedures are in place to reinstate the suspended or revoked 
permit when the problems with the safety rating have been resolved.

G. Pre-Trip Inspections

    GE Nuclear Energy expressed several concerns with the pre-trip 
inspection requirements. It appears that GE Nuclear Energy did not 
understand that the pre-trip requirement of this rule would be met by 
performing a NAS Level VI inspection developed by CVSA. GE Nuclear 
Energy also argued that the proposed regulation states that if ``any 
violation of requirements * * * is discovered, the vehicle must be 
placed ``out of service'' and may not be moved * * *.'' GE Nuclear 
Energy points out that certain radioactive materials shipments, such as 
irradiated fuel, are required to be moved to safe havens, as defined in 
10 CFR part 73, for security reasons without delays. Therefore, GE 
Nuclear Energy requests that the proposed regulations in part 385 and 
any other necessary section be clarified to allow limited vehicle 
movement to safe havens.
    Advocates and CVSA fully support the agency's proposals concerning 
pre-trip inspections, pursuant to 49 U.S.C. 5105(e), that the 
inspections be conducted by trained government inspectors using 
standards similar to the NAS Level VI protocol developed by CVSA. 
However, Advocates strongly supports extending inspection criteria 
similar in stringency to those required by CVSA Level VI to all hazmat 
carried under Federal safety permit. CVSA believes it should be stated 
explicitly that inspections will continue in the current manner, which 
would allow only CVSA certified officers and inspectors to conduct the 
inspections.
    FMCSA Response: In response to GE Nuclear Energy's concerns about a 
vehicle with certain radioactive materials shipments being placed out 
of service because of the pre-trip inspection, FMCSA notes that this is 
a requirement for pre-trip inspections. Thus, if a vehicle did not 
comply with the requirements, it would remain at the shipper facility 
and not be allowed to enter transportation. In the unlikely event a 
vehicle were found in violation of any of the pre-trip inspection 
requirements while in transportation and placed out of service, the 
vehicle would be escorted to a safe haven or other suitable place.
    In 49 U.S.C. 5105(e), FMCSA is required to implement a pre-trip 
inspection for route-controlled radioactive shipments, and this was 
proposed in the SNPRM. The North American Standard (NAS) Level VI pre-
trip inspection is specifically referenced in the regulations as 
meeting the requirements for the permit pre-trip inspection process. In 
response to Advocates' suggestion to apply the pre-trip inspection to 
all permitted materials, we cannot consider this at present as it was 
not proposed in the SNPRM.

H. Route Plans

    Most commenters are critical of and disagree with the proposal that 
a carrier prepare and provide its drivers with a written route plan 
covering any shipment designated in the rulemaking. Commenters have two 
general criticisms. First, they fail to see the security benefits of 
this proposal. For example, ATA writes:

    The SNPRM states that adherence to route plans will increase 
safety. Aside from this conclusory statement, FMCSA has not 
explained the safety benefits associated with maintaining written 
route plans. Based upon the FMCSA's historical experience with the 
use of route plans for radioactive substances, we believe that the 
Administration has the tools at its disposal to quantify the safety 
benefits that have been attributable to the use of route plans.

    The second general criticism is that there are many instances in 
which a driver must alter the route. For example CGA writes:

    A vehicle transporting time sensitive deliveries may be forced 
to abandon a specific route due to a major traffic tie up. The 
carrier may, in the performance of a delivery of one shipment 
covered by this rulemaking, be required to pick-up a container of 
similarly regulated material in excess of the minimum for return. No 
written route plan would be available to the driver in this 
instance.
    On many city deliveries drivers need to adjust their route based 
on the customers receiving hours or congestion at the customer. The 
driver, rather than waste time in line to make a delivery, may opt 
to proceed to the next customer and then return to make the delivery 
at a later time. In addition to it being a good productivity 
practice it would be especially important when considering the Hours 
of Service regulations.

    Most commenters argue that this proposal would curtail the 
legitimate

[[Page 39358]]

movement of materials and create a significant economic burden without 
a real increase in security.
    Several commenters also are concerned about the requirement that 
drivers amend the written route plan to show any deviations from the 
original plan. Air Products requests clarification about when a driver 
must amend the written route plan and what constitutes a deviation 
requiring an amendment. NTTC writes:

    Even under totally legitimate circumstances, vehicle drivers 
should be free to make acceptable route changes to avoid 
extraordinary congestion, accidents, detours, etc. without having to 
make handwritten notations on documents while driving and without 
the permission (or direction) of local law enforcement.

    Finally, commenters are critical about the requirement that 
carriers (not drivers) develop and maintain the written route plans. 
Advocates strongly supports this proposal and states:

    Advocates strongly supports the FMCSA's proposal for a prepared, 
written routing plan to be in the possession of the driver at all 
times for carrying Hazard Zone B materials * * * We also strongly 
support the requirement for alternate routing to be allowed only at 
the behest of enforcement authorities or bona fide emergency 
conditions. Advocates also supports the additional feature of this 
section of the supplemental proposed rule that prohibits the driver 
from preparing the written route plan.

    However, Advocates believes that FMCSA needs to make it clear that 
amendments of the written route plan by the driver must be confined 
solely to alternate routes by reason of enforcement authority direction 
or because of verified emergency conditions, such as road and bridge 
closures, forest fires, and hazmat spills.
    FMCSA Response: FMCSA recognizes the difficulties in developing 
route plans for a range of hazardous materials. Less-than-truckload 
(LTL) carriers, in particular, could face significant logistical 
problems. Thus, FMCSA will not adopt additional route plan requirements 
in this final rule. Instead, the route plan requirements will apply 
only to materials that currently require a route plan (highway route-
controlled radioactive Class 7 and Division 1.1, 1.2, and 1.3 explosive 
materials). The requirements for route plans, which address any changes 
that the driver encounters en route, are specified in Sec.  397.101 and 
Sec.  397.67 of this subchapter.
    The agency believes it is important to require the phone number 
aboard the vehicle, so that when called, it is answered by a company 
employee or representative of the company to confirm that the vehicle 
is within an expected route for that shipment. FCMSA believes that, 
although the phone-contact requirement is less comprehensive than a 
written route plan, it does provide an increased level of security. 
This provides enforcement officials with a mechanism to check that the 
vehicle has not deviated too far from its intended path. For example, 
if a shipment of a permitted material is in Ohio while it should be 
going from Baltimore, Maryland, to Atlanta, Georgia, an enforcement 
official would want to confirm with the company that this shipment is 
``off course,'' and could be stolen or misdirected. The only way an 
enforcement official would be able to confirm the destination and 
origin of a material would be to contact the carrier company, since 
hazardous materials shipping papers do not require the destination 
address.

I. Communications Plan

    The proposed rule included a provision that a communications system 
be installed on each motor vehicle used to transport a hazardous 
material listed in Sec.  385.403(a), to enable the vehicle operator to 
immediately contact the motor carrier during the course of 
transportation of the hazardous material. The proposed rule also 
provided that each operator must be trained in the use of the 
communications system. All but one commenter on this issue opposed 
these requirements. Several commenters submit that neither cell phone 
nor satellite tracking devices will comply with this provision. 
Commenters state that cell phones are not ``installed'' in the vehicle 
as required by the provision, and there are vast regions of the country 
where cell phone use is limited or unavailable. Similarly, they note 
that satellite tracking devices only function when there is a direct 
``line of sight'' between the vehicle's antenna and the relay 
satellite.
    The proposed rule included new requirements for a driver to 
communicate with the motor carrier once every two hours while 
transporting a material for which a safety permit is required. Most 
commenters oppose this new requirement, citing three criticisms. First, 
several commenters discuss concerns about the driver using a cell phone 
while driving or needing to pull off the driving lines in order to make 
the required phone call. Second, several commentors mentioned the 
burden on motor carriers that the call-in procedure would create. The 
third criticism of the two-hour notification is that the proposal 
conflicts with driver hours-of-service requirements.
    In addition, FMSCA proposed that a motor carrier must contact law 
enforcement authorities if more than three hours have elapsed between 
driver communications. Commenters call this proposal unreasonable, 
burdensome, confusing, and potentially unworkable. Nine of the ten 
comments received on this issue asked FMCSA to clarify what law 
enforcement authorities should be contacted. For example, several 
commentors submit that a vehicle could travel through various 
jurisdictions in a short time, so that there are many law enforcement 
choices (Federal, State, and local) for a motor carrier to contact.
    Advocates strongly supports the FMCSA Field Operational Test 
initiative to test a wide variety of safety and security technologies 
for use within the hazmat supply chain from offerors to consignees. 
Advocates applauds this vigorous investigation of supplementary safety 
and security technologies and the agency's willingness to consider 
modifying the contours of its safety permitting system in light of the 
findings of these trial technologies. Advocates also emphasizes that 
the use of remote tracking technologies to ensure adherence to route 
plans, and to ensure that drivers do not violate hours-of-service 
limits, is crucial to advancing hazmat safety and security.
    Along with the proposal to make these calls, FMCSA proposed a 
recordkeeping requirement. IME, Air Products, and ACC object to the 
proposal that motor carriers create and then retain for six months 
records of driver-carrier communications. IME comments that companies 
with larger numbers of drivers and carrier personnel may be overwhelmed 
by the demands of keeping and consolidating written records that 
include routine communications. Air Products would like to know the 
frequency for updating the communications log; in some instances it may 
be a considerable time before the facts or conditions that prevented 
communication from the driver are known. ACC states that maintaining a 
log of this nature would require substantial personnel resources and 
yield little security benefit.
    FMCSA Response: FMCSA agrees with commenters that the 
communications requirements proposed in the SNPRM could present 
logistical problems. Further, we are working with RSPA on an ongoing 
security rulemaking under docket HM-232A. FMCSA does not want to create 
requirements in this rulemaking prior to completion of the Field 
Operational Test initiative and the HM-232A

[[Page 39359]]

rulemaking. Essentially, FMCSA's original proposal was an effort to 
develop a ``low-tech'' tracking system of permitted materials through 
the use of communication with the driver of the shipments. However, if 
the system is too cumbersome, it will fail to achieve this goal. 
Therefore, the requirements in this final rule create a basic tracking 
system that allows for flexibility. With a basic framework in place, 
FMCSA will work with RSPA in its security rulemaking process to develop 
further security measures.
    The requirement in today's final rule for companies to develop a 
communications plan requiring at least two calls per day is an effort 
to minimize the burden on industry, while creating a basic structure 
for tracking vehicles. It is probably current practice with many 
drivers to check in with their company twice a day (or at the pickup 
and delivery of a load), and FMCSA believes this is a minimum 
requirement to assure that high-hazard shipments undergo some type of 
tracking and monitoring. FMCSA does not intend drivers to meet this 
requirement by using a cell phone while operating a motor vehicle, or 
to make an additional stop. The agency believes that the twice-a-day 
requirement is consistent with current practice and can be met without 
making additional stops. Due to the decrease in the number of required 
calls, maintaining a record of these calls does not present the same 
burden as maintaining a record of the number of calls proposed in the 
SNPRM.
    In addition, providing in the final rule the TSA's Transportation 
Security Coordination Center phone number, and recommending, rather 
than requiring, that companies or drivers call the center if 
notification is late or absent, will reduce the number of ``false 
calls.'' FMCSA also believes it will provide more flexibility to 
companies inaccurately tracking shipments, while also providing an 
avenue to report missing or stolen shipments.
    FMCSA notes that the reduced number of required calls in today's 
rule greatly diminishes the paperwork burden. In addition, the 
flexibility provided for this requirement should address commenters' 
concerns about the paperwork requirements. FMCSA allows for flexibility 
by requiring companies to have a system in place to track the calls 
made under the communications plan. Either the driver or the company 
may keep a record of when and where the calls are made. However a 
company wishes to keep this information, it must be made available to 
an enforcement official upon request.

J. Permit Documentation

    CGA, Air Products, NASSTRAC, and ACC support FMCSA's proposal not 
to require the carrier's safety permit number to appear on shipping 
papers, but state that the carrier would still be required to maintain 
a copy of the safety permit or have another document showing the permit 
number in the vehicle transporting a designated hazardous material. 
These commenters suggest that if the registration application for the 
hazardous materials Certificate of Registration were used for issuing 
the safety permit, one document could contain both the registration and 
safety permit number(s), thereby reducing administrative effort and the 
driver's paperwork burden. ATA states that, to the extent evidence of 
the permit is required in the vehicle, that document should be combined 
with the RSPA registration certificate or Uniform Program document and 
FMCSA should not pursue the creation of a new, separate motor vehicle 
certificate.
    NASSTRAC also supports FMCSA's decision to leave to another 
occasion implementation of the statutory requirement that shippers may 
offer a designated commodity ``only if the carrier has a safety 
permit.'' NASSTRAC suggests this requirement may be met in less 
burdensome ways, such as attaching permits to contracts with a 
requirement that the carrier notify the shipper immediately of any 
change in its status. Or it may be met in more burdensome ways, such as 
requiring that shippers confirm carrier permit status every time a 
shipment of a designated commodity is tendered. NASSTRAC would not 
support the latter approach.
    Alliance asks about the statement in the SNPRM preamble that ``A 
state or local law enforcement officer would be able to confirm the 
validity of this number (safety permit number) through real-time or 
close to real-time information made readily accessible by FMCSA.'' 
Alliance wants to know what system would provide this information and 
how it would be used.
    FMCSA Response: It is essential for enforcement purposes that a 
carrier's permit number or a copy of its permit be on board the vehicle 
for which the permit is required. Otherwise, it would be impossible for 
a roadside inspector to determine if the company held a current, valid 
permit. Using a computer system database or calling into a facility 
with access to these systems allows for real-time or close to real-time 
tracking of permit numbers through current FMCSA systems.
    Since this program is not being combined with RSPA's registration 
program, FMCSA will not require the permit number to be on the RSPA 
registration statement. However, a carrier that wishes to present all 
its required registration or permit numbers together will have the 
flexibility to display the permit number on any document the carrier 
desires.

K. Enforcement

    Advocates strongly supports the criteria under which a safety 
permit will be subject to denial, suspension, or revocation, but asks 
for clarification on the terms of each of the three actions. Since the 
hazmat safety permit addresses a specific subset of hazmat deemed 
especially dangerous and worthy of additional Federal approval and 
oversight, the agency should specify a minimum period that must elapse 
before the carrier can reapply for a hazmat permit after the permit was 
suspended or revoked. Advocates strongly suggests establishing a 
minimum suspension period of 30 days and a minimum revocation period of 
90 days before a carrier could attempt to regain its safety permit 
status.
    FMCSA Response: Any violation of the permitting rule falls under 
the HM statute penalty provision found in 49 U.S.C. 5123. We have 
modified the title of paragraph (e) in Appendix B to Part 386 to 
reflect this. FMCSA has compiled a list of critical and acute 
violations that could affect a company's safety rating, leading to the 
suspension or revocation of a safety permit, along with a listing of 
other actions that could lead to revocation or suspension of a permit.
    For the first instance of violating these requirements, the permit 
will be suspended until the problems are addressed. The second time a 
motor carrier is found in violation of these requirements, the permit 
will be revoked for one year. The decision to deny a permit is outlined 
in Sec. Sec.  385.405 and 385.407.
    Although we did not receive comments concerning this issue, FMCSA 
removed the SafeStat listing as a reason for denying a permit because 
the SafeStat listing is redundant in view of the crash rate, out-of-
service rate, and security requirement criteria for denial.

L. Cost-Benefit Analysis

    The 10 commenters addressing cost and benefit issues question 
virtually all of FMCSA's assumptions and estimates, with respect to 
costs, benefits, or both. These commenters are IME, CGA, ATA, COSTHA, 
NASSTRAC, Motor Freight Carriers Association (MFCA), Alliance,

[[Page 39360]]

Fisher Scientific, BPC, and an individual.
    ATA, COSTHA, MFCA, BPC, and Fisher Scientific question FMCSA's 
assumption that currently 90 percent of carrier vehicles or drivers are 
equipped with cell phones or some kind of communications equipment. 
MFCA estimates that the costs of communication devices to the industry 
would be ``10 times the FMCSA total industry estimate of $125,000.''
    IME, ATA, Alliance, COSTHA, and Fisher Scientific all question 
FMCSA's estimate of a 25 percent reduction in the number of hazardous 
materials accidents as a result of this rulemaking.
    NASSTRAC, IME, and ATA question the use of September 11 as a basis 
for estimating the costs of an intentional hazardous materials incident 
and the potential benefits from avoiding such an incident. ATA states:

    Using the September 11, 2001, incident cost estimates is 
inappropriate in the context of discussing the cost of a truck bomb 
with some quantity of regulated hazardous materials. First, the 
September 11th attack was not one terrorist attack; it was the 
coordination of four separate attacks. Second, the instruments used 
in the attacks were airplanes, not trucks. Third, the damage from 
the attacks was not caused by the release of hazardous materials 
that are subject to this Proposed Rule. As such, the cost estimates 
used do not comply with DOT'S data quality guidelines and are 
otherwise arbitrary and capricious.

    ATA further states that based on FMCSA's own assumption that the 
SNPRM will thwart one of the next thousand terrorist attempts, ``we 
would expect this rule to stop one terrorist attack over the next 5,000 
years.''
    FMCSA Response: The cost of communications equipment was partially 
responsible for FMCSA's reducing the number of phone calls required and 
for allowing the calls to be placed at times where access to a payphone 
or customer phone would be available. FMCSA has addressed many comments 
concerning the use of terrorist events in the cost-benefit analysis for 
this final rule. For example, instead of using a set probability that 
this rule would prevent a terrorist attack, we have performed a simple 
sensitivity analysis to show the possible range of benefits depending 
on the probability the rule will prevent a terrorist attack. Readers 
are encouraged to refer to the full cost-benefit analysis in the docket 
for further discussion of these issues.

IV. Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    FMCSA has determined that this rulemaking is a significant 
regulatory action within the meaning of Executive Order 12866, and is 
significant within the meaning of the U.S. Department of 
Transportation's regulatory policies and procedures (DOT Order 2100.5 
dated May 22, 1980; 44 FR 11034, February 26, 1979) because of 
significant public interest in the issues related to hazardous 
materials permitting.
    FCMSA's analysis determined that first-year costs to implement the 
permit program established in the final rule are $5.3 million. The 
estimated annual costs to HM carriers and FMCSA are $4.8 million, 
resulting in total discounted costs over a 10-year period of $33.9 
million. The estimated annual benefits resulting from improved safety 
derived from reduced accidental HM releases alone are $3.6 million, 
which results in total discounted safety benefits over a 10-year period 
of $25.3 million. Additional security benefits are also gained because 
the rule's provisions will hamper terrorists. Although we cannot 
predict the actual security benefits or the number and size of future 
terrorist acts, the security benefits clearly would be immense if the 
rule prevented a terrorist act even a fraction of the size of the Twin 
Towers calamity. Further, based on the sensitivity analysis performed 
for the security benefits of the rule, using terrorism costs assumed in 
a recent RSPA rule establishing requirements for security plans, if the 
permitting program has at least a one-in-ten-thousand chance of 
stopping a terrorist attack annually, then security benefits would 
total $2.5 million annually, or $17.5 million discounted over 10 years. 
This results in a total net benefit to society. FMCSA also did not 
quantify the rule's secondary benefits of avoiding property damage, 
environmental damage, clean-up costs, and evacuations, because of the 
uncertainty associated with these estimates.
    The intent of this rulemaking is to enhance the safety and security 
of HM shipments. This rule includes requirements for motor carriers of 
certain HM to obtain a safety permit from FMCSA. In order to obtain a 
permit, motor carriers must comply with safety and security standards 
and establish a system for communicating with drivers either 
telephonically or via electronic device. FMCSA will conduct carrier 
assessments to ensure compliance with operational, safety, and security 
standards. Carriers with less-than-Satisfactory safety ratings will be 
prohibited from transporting HM materials requiring a permit.
    The analysis presented in this regulatory evaluation focuses on 
benefits and costs for a permit program covering only a certain group 
of highly hazardous materials. The final rule adopts a slightly 
expanded list comprised of the statutory list and additional explosive 
and toxic by inhalation (TIH) materials in certain quantities as 
appropriate. The list of materials requiring a permit in this final 
rule is as follows:
    1. Radioactive Materials--A highway route-controlled quantity of 
Class 7 materials.
    2. Explosives--More than 25kg (55 pounds) of a Division 1.1, 1.2 or 
1.3 material, or an amount of a Division 1.5 material requiring a 
placard under part 172, subpart F of Title 49 CFR.
    3. Toxic by Inhalation (Division 2.3 and 6.1) Materials--Hazard 
Zone A materials in a packaging with a capacity greater than 1 liter 
(0.26 gallons); a shipment of Hazard Zone B materials in a bulk 
packaging (capacity greater than 450 L [119 gallons]); or a shipment of 
Hazard Zone C or D materials in a bulk packaging having a capacity 
equal to or greater than 13,248 L (3,500) gallons.
    4. A shipment of compressed or refrigerated liquid methane or 
natural gas or other liquefied gas with a methane content of at least 
85 percent in a bulk packaging having a capacity equal to or greater 
than 13,248 L (3,500 gallons) for liquids or gases.
    The first-year costs to implement the permit program established in 
the final rule are $5.3 million. These include the one-time costs for 
the permit application and, if needed, a compliance review. The 
estimated annual costs to HM carriers and FMCSA are $4.8 million. The 
total discounted costs over a 10-year period are $33.9 million.
    The major driver of HM carrier costs is the cost to record and 
maintain communication records. This cost item represents about 99 
percent of the total annual costs to HM carriers to comply with the 
permit program requirements.
    The safety benefits were derived from the projected crash 
reductions resulting from the permitting program. These total estimated 
benefits are large because of the number of conventional crashes that 
may be prevented.
    Determining exact benefits of preventing a terrorist attack is 
difficult. Those that are available offer only inexact comparisons. For 
example, the benefit-cost analysis for RSPA's HM-232 final rule 
indicates that the cost of

[[Page 39361]]

the attack on the Murrah Federal Building in Oklahoma City amounted to 
approximately $1.5 billion. Clearly, the costs from the attacks of 
September 11, 2001, are far greater than the attack on the Murrah 
Federal Building.
    FMCSA derived a scaled estimate of $25 billion as the cost of a 
malicious hazardous materials incident. This figure is based upon the 
lowest estimate reported of the most costly terrorist attack ever--the 
September 11th attacks; the estimated cost of the Oklahoma City attack; 
and the costs of other recent terrorist attacks occurring in the past 
ten years. Based on this information, FMCSA prepared a simple 
sensitivity analysis to produce a range of benefits for the security 
portion of this rule. FMCSA uses a range of probability that the 
permitting program would prevent a terrorist event using hazmat 
regulated under the final rule. FMCSA uses the estimate of $25 billion 
as the cost of an intentional release of hazardous materials covered by 
the rule.
    This sensitivity analysis shows that if the permitting rule has a 
one-in-one-million chance of preventing a terrorist attack, then that 
benefit is worth $25,000. If the rule has a one-in-one-hundred chance 
of preventing a terrorist attack, the benefit falls to $250 million. 
While it is difficult to determine the chance that the permitting 
program would prevent or deter an intentional release, this type of 
analysis demonstrates that because of the potential high cost of a 
terrorist attack, efforts that may present even a small chance of 
averting a terrorist attack can provide security benefits.
    As shown in Table ES-1 below, the one-time costs for the carrier, 
representing the costs of permit application and compliance review, are 
$0.5 million. The estimated annual cost to HM carriers is $2.8 million. 
The estimated annual cost to FMCSA is $2 million. These costs total 
$5.3 million.
    The annual safety benefit is $3.7 million. If we conservatively 
estimate that the rule has a one-in-ten-thousand chance of stopping a 
terrorist attack, we add an annual security benefit of $2.5 million. 
This provides a total benefit of $6.2 million.

                                   Table ES-1.--Summary of Benefits and Costs
----------------------------------------------------------------------------------------------------------------
                                       Cost to HM carriers                        Annual benefits
                              ----------------------------------------------------------------------------------
     Annual cost to FMCSA        Initial one-                         Accidental
                                  time costs       Annual costs        releases        International  releases
----------------------------------------------------------------------------------------------------------------
$2 million...................  $0.5 million....  $2.8 million....  $3.7 million...  $25,000-$250 million
----------------------------------------------------------------------------------------------------------------

    The total discounted cost to both FMCSA and HM carriers over a 10-
year period to implement the permit program is $33.9 million. The total 
discounted safety benefit over a 10-year period is $26 million from 
accidental releases alone. An additional amount of security benefit is 
also gained but was not included in this ten-year estimation.
    Despite the potential for benefits to exceed costs, there is a 
significant difference in how benefits and costs are allocated. The 
costs are assumed primarily by thousands of carriers, while most of the 
benefits accrue to the general public. Furthermore, the analysis does 
not account for some of the benefits that would flow from avoiding or 
preventing major HM incidents. Major HM incidents may result in long-
term psychological and economic effects that are costly to a society 
and economy. Although avoidance of these effects is a benefit that can 
be measured in monetary terms, this analysis has not attempted to 
calculate these benefits because of the great uncertainty associated 
with estimating them.
    FMCSA has prepared an in-depth regulatory analysis that further 
explains the basis for determining the costs and benefits of this rule. 
This cost-benefit analysis is available in the public docket (Docket 
No. FMCSA-97-2180; formerly FHWA-97-2180) for this rule. The public 
docket is located on the Docket Management System Web site: http://dms.dot.gov/search/searchFormSimple.cfm.

Executive Order 13175 (Tribal Consultation)

    FMCSA has analyzed this action under Executive Order 13175, dated 
November 6, 2000, and believes the rule will not have substantial 
direct effects on one or more Indian tribes; will not impose 
substantial direct compliance costs on Indian tribal governments; and 
will not preempt tribal law. Therefore, a tribal summary impact 
statement is not required.

Executive Order 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this rule under Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use.'' FMCSA has determined that this action will not 
be a significant energy action under this Executive Order because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects under Executive Order 13211 is not required.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532, et seq.) requires each agency to assess the effects of its 
regulatory actions on State, local, and tribal governments, and on the 
private sector. Any agency promulgating a final rule that is likely to 
result in a Federal mandate requiring expenditures by a State, local, 
or tribal government or by the private sector of $100 million or more 
in any one year must prepare a written statement incorporating various 
assessments, estimates, and descriptions that are delineated in the 
Act. FMCSA has determined that this rulemaking will not have an impact 
of $100 million or more in any one year.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires FMCSA to evaluate the potential impacts of its HM permitting 
rule on small businesses, organizations, and governmental 
jurisdictions. Whenever FMCSA publishes a final rule, it must make 
available to the public for comment the flexibility analysis that 
evaluates the impact of the proposed rule on small entities. Section 
603(b) of the Act specifies that the contents of the Regulatory 
Flexibility Analysis (RFA) include the following five requirements:
    1. Description of the reasons why action by the agency is being 
considered;
    2. Statement of the objectives of, and legal basis for, the final 
rule;
    3. Description of and, where feasible, an estimate of the number of 
small entities to which the final rule will apply;
    4. Description of the projected reporting, recordkeeping and other

[[Page 39362]]

compliance requirements of the rule, including an estimate of the 
classes of small entities which will be subject to the requirement and 
the type of professional skills necessary for preparation of the report 
or record; and
    5. Identification, to the extent practicable, of all relevant 
Federal rules that may duplicate, overlap, or conflict with the final 
rule.
    In addition to the above requirements, a description of any 
significant alternatives to the final rule, which accomplish the stated 
objectives of applicable statutes and which minimize any significant 
economic impact of the final rule on small entities, is also included 
in the analysis. The following sections discuss the various elements of 
the regulatory flexibility analysis outlined above.
    (1) Reasons why action by the agency is being considered.  FMCSA 
has initiated a rulemaking mandated by Congress for a new HM truck 
transportation permit system. The intent of the final rulemaking is to 
enhance the safety and security of high-hazard HM shipments. FMCSA is 
taking this action because certain high-hazardous materials, if 
released either accidentally or intentionally during transportation, 
have the potential to be used in terrorist attacks or present a greater 
hazard in the event of an accident.
    (2) Objectives of and legal basis for the final rule. The objective 
of FMCSA's permit program is to provide oversight of the safety and 
security of carriers transporting selected high-hazard HM. The 
permitting program will impose additional requirements and provide 
additional oversight of these carriers. Oversight will include imposing 
operational security requirements, setting minimum safety and security 
standards, and making safety and security assessments of carriers to 
ensure compliance with operational, safety, and security standards. The 
permit program is intended to improve the safety and security of HM 
shipments and thus reduce deaths, injuries, and related damages 
stemming from accidental and intentional incidents involving these 
commodities.
    Motor Carrier Safety Permits (49 U.S.C. 5109) requires that FMCSA 
permit carriers that transport Divisions 1.1, 1.2, or 1.3 explosives, 
liquefied natural gas, extremely toxic by inhalation hazardous 
materials, and highway route-controlled quantities (HRCQ) of 
radioactive materials. Section 5109 allows FMCSA to permit other HM if 
appropriate. Section (E), part (2), of 49 U.S.C. 5109 enables the 
Secretary of Transportation to determine the standards for deciding the 
duration, terms, and limitations of a safety permit.
    (3) Description and estimate of the number of small entities. The 
final rule affects intrastate and interstate carriers of HM. The number 
of small carriers is determined based on the Small Business 
Administration (SBA) definition used for the RSPA registration file. 
RSPA flags the small carriers using the SBA definition to indicate if 
they are qualified based on the number of employees and business 
dollars. The number of small carriers that could potentially be 
affected by the new permit system is determined by the implementation 
of the amounts and types of materials covered. This list is described 
below.
List of Covered Materials
    The permitting program covers the statutory or congressionally 
required list of HM under 49 U.S.C. 5109. This legislation requires 
FMCSA to permit carriers that transport these types and amounts of HM. 
In addition to this statutory list, FMCSA has modified the list to 
include bulk quantities of Division 1.5 materials and toxic--by-
inhalation materials that include Zone B, C, or D materials in bulk 
quantities. The list of covered materials is as follows:
     More than 25 kg (55 pounds) of Division 1.1, 1.2, or 1.3 
explosives, or an amount of a Division 1.5 material requiring a placard 
under 49 CFR part 172, subpart F.
     Radioactive Materials--A highway route-controlled quantity 
of Class 7 materials.
     Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--
Hazard Zone A materials in a packaging with a capacity greater than 1 
liter (0.26 gallons); a shipment of Hazard Zone B materials in a bulk 
packaging (capacity greater than 450 L [119 gallons]); or a shipment of 
Hazard Zone C or D materials in a bulk packaging having a capacity 
equal to or greater than 13,248 L (3,500) gallons.
     A shipment of compressed or refrigerated liquid methane or 
natural gas or other liquefied gas with a methane content of at least 
85 percent, in a bulk packaging having a capacity equal to or greater 
than 13,248 L (3,500 gallons) for liquids or gases.
    Table 1 shows the number of small carriers that could potentially 
be affected. Small carriers are defined as carriers with 20 power units 
or less. About 78 percent of the carriers included for this list of 
materials are designated as small carriers.

                   Table 1.--Number of Small Carriers
------------------------------------------------------------------------
                                       Number of small
              Carriers                    carriers       Total carriers
------------------------------------------------------------------------
Total Number of Carriers for List of             2,436             3,131
 Materials Covered..................
Number of Interstate Carriers.......             1,664             2,139
Number of Intrastate Carriers.......               772               992
------------------------------------------------------------------------

    In addition to small carriers, other small businesses and small 
entities could potentially be affected by the permitting system. Small 
businesses that provide services to small carriers, supply product for 
shipment, or receive shipments also could be affected by the rule. The 
customers and suppliers of small carriers could be adversely affected 
if a carrier were prohibited from shipping certain HM because a permit 
had been denied or revoked. Similarly, local government entities such 
as police could be affected by the proposed HM permitting requirements. 
The police could be notified by TSA anytime a planned communication was 
not received from the driver of a permitted HM vehicle. This probably 
would require the expenditure of law enforcement resources to 
investigate the communication lapse. The number of local police 
entities that would be involved is difficult to estimate before the 
permit program is implemented. The number of small businesses that 
potentially could be affected by the new permit rule is also difficult 
to estimate without further research.
    (4) Description of reporting, recordkeeping, and other compliance 
requirements. The compliance requirements include an estimate of the 
classes of small entities that will be subject to the requirement and 
the type of professional skills necessary for

[[Page 39363]]

preparation of the report or record. The reporting, recordkeeping and 
other compliance requirements of the final rule are addressed in the 
following discussion.
    The initial application for the permit will include the following 
elements:
    1. Submitting a new MCS-150B form. This form contains all fields on 
the current MCS-150 form, which will need to be updated, and additional 
fields unique to the MCS-150B form.
    2. Certifying that all HM incidents have been reported to DOT.
    3. Certifying the carriers have the required security plan and 
training.
    4. Certifying compliance with the communication requirements.
    5. Ensuring the carrier's safety and security records are adequate.
    Carriers will need to devote some effort to completing a permit 
application. Each interstate carrier, whether small or large, will have 
to spend about six additional minutes preparing the permit application 
(for the fields that are not on the existing MCS-150 form). This 
amounts to approximately $2.10 of clerical labor. For an intrastate 
carrier, the expenditure is approximately $9.10, because the carrier 
will not previously have been required to complete the MCS-150B form 
(26 minutes for the form). These expenditures apply to the first year. 
However, much of the effort in the permit application will be performed 
by FMCSA. FMCSA will check accident reporting and safety facts by using 
the MCMIS and Hazardous Materials Information System (HMIS) databases. 
FMCSA will also determine that the application is complete and that 
safety records are adequate.
    If safety records are not adequate, then an on-site Compliance 
Review (CR) will be performed to determine if a permit should be 
issued. This activity is likely to result in additional paperwork for 
carriers rated either Unsatisfactory or Conditional, as these carriers 
will be required to undergo a new CR. The Benefit-Cost Analysis of 
Permitting Options report estimates that each carrier requiring a new 
CR will have to spend at least $182 of clerical time for completion of 
paperwork.
    In addition to completing a permit application, the applicable HM 
carriers in the HM permit program will have to do the following:
     Develop a ``plan'' to meet the HM permit requirements that 
drivers be able to easily contact the carrier and/or law enforcement 
agencies in emergencies. Document required communications between the 
driver and dispatcher, and maintain written communication records. The 
cost per shipment was estimated at about $1.75 each trip.
     Carriers in the HM permitting program will be required to 
renew their permit application biennially. This will require about 6 
minutes of clerical time for an interstate carrier and 16 minutes of 
clerical time for an intrastate carrier. The actual permit renewal will 
consist of checking the necessary boxes on the application for renewal.
    In summary, the HM permitting rules will create additional 
responsibilities for small carriers. These responsibilities will also 
produce additional labor costs. However, FMCSA believes that the great 
majority of small carriers will use existing staff to handle the permit 
program duties.
    For this Regulatory Flexibility Analysis, costs are cited for the 
small carriers identified in Table 1. The cost profile for small 
carriers should be different from that for large carriers. This is 
because large carriers have more trucks, and consequently move a 
greater volume of shipments. Data for fleet size and number of miles 
traveled in the Vehicle Inventory and Use Survey (VIUS) were used to 
estimate the proportion of shipment volume moved by small carriers. In 
VIUS, carriers with fleets of greater than 25 trucks accounted for 
about 56 percent of the mileage traveled. Based on assumptions that the 
number of miles traveled approximates shipment volume, and that large 
carriers may make more long-distance trips than small carriers, the 
cost analysis assigns 50 percent of all trips to small carriers.
    Table 2 summarizes the first-year and annual costs for a small 
carrier.

                                    Table 2.--Cost Summary per Small Carrier
----------------------------------------------------------------------------------------------------------------
                                                                                                     Cost per
                                                                                    Cost per       carrier for
           Permit-related activity                        Unit cost               carrier for       successive
                                                                                   first year         years
----------------------------------------------------------------------------------------------------------------
Permit application:
    Interstate carrier.......................  $21/hour \1\ \2\...............            $1.05              N/A
    Intrastate carrier.......................  $21/hour.......................             9.10              N/A
Permit renewal:
    Interstate carrier.......................  $21/hour.......................              N/A             1.05
    Intrastate carrier.......................  $21/hour.......................              N/A             2.80
Safety record compliance.....................  $182/carrier \3\...............              182              N/A
Communication recordkeeping requirements.....  $1.75/trip.....................            1,129            1,129
                                              ----------------------------------
        Worst Case Total Cost per Small        ...............................            1,321           1,133
         Carrier \4\.
----------------------------------------------------------------------------------------------------------------
\1\ Unit cost is assumed as clerical hourly pay of $15/hour plus fringe benefits (40%) for a total of $21/hour.
\2\ Assumes that one-half of interstate small carriers will require permit for the first year.
\3\ Applies to all small carriers without a SafeStat rating.
\4\ Assumes an intrastate carrier that requires a compliance review.

    A small carrier could face two major negative impacts. First, the 
carrier could be prohibited from shipping certain HM because a permit 
was denied or revoked. Aside from the loss of contracts and income, 
this action would likely force the carrier to expend considerable 
effort in addressing and correcting problem areas and successfully 
completing the permit application process. The second impact would be 
financial, related to compliance with the HM permit process. For all 
but the most marginal small-carrier operations--that is, those already 
suffering from poor cash flow and a small profit margin--an initial 
impact of about $1,300 or an annual impact of about $1,100 would not be 
significant. This added expenditure is unlikely to prevent the 
overwhelming majority of small carriers from participating in the HM 
trucking business.
    (5) Relevant Federal rules which may duplicate, overlap, or 
conflict with the final rule. Two statutory provisions, 49 U.S.C 5119 
and 5105(e), could conflict with the HM permit rule if the rule did not 
specifically reference the provisions.

[[Page 39364]]

    First, section 5119 authorizes States to participate in the 
Alliance for Uniform HM Transportation program (Alliance). FMCSA 
intends to automatically issue a Federal permit to a carrier that 
obtains a permit from a State having a program equivalent to the 
Federal permit program. Therefore, a comparable State program will be 
deemed equivalent to the Federal HM Permit Program and no statutory 
conflict will exist. However, the motor carrier must still possess at 
least a Satisfactory safety rating. If a carrier's rating is less than 
Satisfactory, the permit may be suspended or revoked until a 
Satisfactory rating is achieved.
    The second potential conflict is the Point of Origin Inspections 
for Highway Route-Controlled Quantities (HRCQ) shipments required by 49 
U.S.C. 5105(e). These inspections are currently required to be 
conducted via the CVSA Level VI Enhanced Radioactive Materials 
Inspection Program, which fulfills the requirements of 49 U.S.C. 
5105(e). Today's final rule explicitly cites this requirement for HRCQ 
and thus prevents any statutory conflict.
Conclusion
    The final rule is not anticipated to have any significant impact on 
the great majority of small carriers transporting HM covered by the 
proposed HM permit. As discussed above, the approximately 2,400 small 
carriers will incur some additional costs to implement the permitting 
program. A small carrier transporting HM would incur an annual cost of 
about $1,100 to comply with the rule. This added expenditure is 
unlikely to prevent the overwhelming majority of small carriers from 
participating in the HM trucking business. For these small carriers, 
the cost increase will not be reflected in significantly lower carrier 
profits or higher charges to suppliers, shippers, or other customers.
    Small businesses that work with the small carriers would not 
ordinarily be affected by the permit rules during the course of normal 
business operations. These small businesses would experience a negative 
impact only if a small carrier they dealt with were seriously harmed by 
the permit program and forced either to cut back its business volume or 
cease operations entirely. Since HM permit holders are unlikely to 
experience consequences of this nature if a required permit is rejected 
or suspended, small businesses that work with the carriers are also 
unlikely to be affected.
    Small governmental entities such as local police departments may 
receive some additional calls and may need to prepare some reports if 
the permit system's communications requirements mandate that a 
particular truck be traced and/or investigated. These calls and reports 
are not anticipated to significantly affect the workload or staffing of 
these local entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (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. FMCSA analyzed this final rule and 
determined that its implementation will increase the existing 
information collection (IC) burden on motor carriers, both interstate 
and intrastate. The final rule adopts a slightly expanded list of HM 
requiring a permit, comprised of the statutory list and additional 
explosive and toxic by inhalation (TIH) materials in certain quantities 
as appropriate. Specifically, a permit will be required for:
    1. Radioactive Materials--A highway route-controlled quantity of 
Class 7 materials.
    2. Explosives--More than 25 kg (55 pounds) of a Division 1.1, 1.2, 
or 1.3 material, or an amount of a Division 1.5 material requiring a 
placard under title 49 CFR, part 172, subpart F.
    3. Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--Hazard 
Zone A materials in a packaging with a capacity greater than 1 liter 
(0.26 gallons); a shipment of Hazard Zone B materials in a bulk 
packaging (capacity greater than 450 L [119 gallons]); or a shipment of 
Hazard Zone C or D materials in a bulk packaging having a capacity 
equal to or greater than 13,248 L (3,500) gallons.
    4. A shipment of compressed or refrigerated liquid methane or 
natural gas or other liquefied gas with a methane content of at least 
85 percent, in a bulk packaging having a capacity equal to or greater 
than 13,248 L (3,500 gallons) for liquids or gases.
    The burden on industry was determined for this option and is 
described in detail in the Regulatory Flexibility Analysis report.
Change to Current Collection
    One currently approved information collection is affected by this 
final rule: OMB Control No. 2126-0013, titled ``Motor Carrier 
Identification Report,'' which is approved for 74,250 burden hours. 
This final rule would increase the IC burden hours for OMB Control No. 
2126-0013 by extending the data collection to 992 intrastate motor 
carriers (both small and large) that transport the permitted hazardous 
materials. FMCSA estimates that interstate motor carriers that have 
already completed MCS-150 forms will require about 6 minutes to 
complete and file an application for registration, and that intrastate 
carriers that have not completed MCS-150 forms will require about 26 
minutes (0.43 hours). Using RSPA's registration database to obtain the 
number of affected intrastate carriers, the burden hour increase for 
this collection is 430 hours (992 intrastate carriers x 26 minutes/60 
minutes per hour = 430 hours).
    Thus, for existing OMB Control No. 2126-0013, the burden hours 
would be increased to 74,680 (74,250 current + 430 additional), and the 
number of respondents would increase to 549,992 (549,000 current + 992 
additional).
    The permitting program requires carriers to maintain written 
records of communication between drivers and their carriers. This 
communication must take place at least twice a day. The types of 
information required include time and location of communication. The 
communication recordkeeping requirements were assumed to take 5 minutes 
per trip of a clerk's time at an hourly pay of $15 (plus 40 percent for 
fringe benefits). The total burden hours were based on 1,570,391 
estimated annual trips for carriers. This annual burden is 41.80 hours 
per carrier (5 minutes/60 minutes per hour x 1,570,391/3,131 carriers).
    The estimated IC burden hours are summarized in Table 3 below. 
These values reflect the additional burden that the final rule will 
place on the affected carriers and are derived from MCMIS and RSPA data 
as mentioned above.

                                          Table 3.--Burden Calculations
----------------------------------------------------------------------------------------------------------------
                                                     Carriers                              Burden hours
                                 -------------------------------------------------------------------------------
                                                                                    Per carrier
                                    Intrastate      Interstate         Total            \1\            Total
----------------------------------------------------------------------------------------------------------------
Increased reporting under OMB                992             N/A             992            0.43             430
 Control No. 2126-0013..........

[[Page 39365]]

 
Maintaining communications                   992           2,139           3,131           41.80         130,866
 records........................
                                 -----------------
    Total.......................  ..............  ..............  ..............  ..............        131,296
----------------------------------------------------------------------------------------------------------------
\1\ Figures are rounded to the nearest hundredth; unrounded numbers are used in calculations.

    As shown in Table 3, the total estimated first-year burden is 
131,296 hours.
    It is estimated that burden hours in subsequent years would 
primarily be the time to provide shipment estimates and communication 
records, as also indicated in Table 3.
New Information Collection Activity
    This final rule will also establish a new data collection for all 
motor carriers that transport any of the permitted hazardous materials. 
Three provisions of the final rule would not require any substantive 
increase in the reporting burden:
    1. To certify that all hazardous materials incidents have been 
reported to RSPA;
    2. To certify that the communication requirements of this rule have 
been met; and
    3. To certify that the security plan and training requirements have 
been met.
    All carriers of hazardous materials requiring a permit under this 
rule are subject to RSPA's registration requirements and should already 
have a valid registration number. The certifications required under 
this rule are simple affirmations that the requirements have been met, 
without the need for providing supporting documentation. The 
affirmation is included in the permit application form.
    For purposes of calculating the burden hours, RSPA registration 
data were used for estimating the number of HM carriers, both 
interstate and intrastate, that transport the listed types of HM under 
each permitting option.
    The biennial permit renewal requires carriers only to check off a 
few additional boxes (relative to the existing MCS-150 form) on the 
MCS-150B form. The burden hours to check off the additional boxes on 
the MCS-150B form are small--about 6 minutes. Interstate carriers 
already must complete the MCS-150 and will only incur an additional 6-
minute burden; however, intrastate carriers have never completed an 
MCS-150 and will need about 16 minutes (0.27 hours) to complete the 
permit renewal.
    The burden hours for the communication records will be the same for 
all years. The annual burden hour estimate of 131,105 is shown in Table 
4. As only one-half of all carriers will be required to renew their 
permit application each year, the per-carrier burden hours shown have 
been divided by two to compute the annual average. The annual burden 
hours are the sum of the burden hours for permit renewals ([992 
intrastate carriers x 16 minutes + 2,139 interstate carriers x 6 
minutes]/60 minutes per hour x \1/2\ of all carriers each year = 239 
hours) and communication records.

                                                          Table 4.--Annual Burden Calculations
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Carriers                                  Burden hours
                                                                  --------------------------------------------------------------------------------------
                                                                                                               Per carrier \1\
                                                                      Intrastate       Interstate   ------------------------------------      Total
                                                                                                        Intrastate        Interstate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increased reporting under OMB Control No. 2126-xxxx..............              992            2,139              0.13              0.05              239
Maintaining communications records...............................              992            2,139             41.80             41.80          130,866
                                                                  ------------------
    Total........................................................  ...............  ...............  ................  ................         131,105
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Figures are rounded to the nearest hundredth; unrounded numbers are used in calculations.

    The first-year and annual burden hours are summarized together in 
Table 5.

                    Table 5.--Summary of Burden Hours
------------------------------------------------------------------------
                              Burden hours
-------------------------------------------------------------------------
                       First-year                             Annual
------------------------------------------------------------------------
131,296.................................................         131,105
------------------------------------------------------------------------

    We estimate that the new total information collection and 
recordkeeping burden resulting from the additional Motor Carrier 
Identification Reports and permit applications under this rule are as 
follows:
Motor Carrier Identification Report
    [OMB No. 2126-0013]
    Total Annual Number of Respondents: 549,992.
    Total Annual Burden Hours: 74,680.
Hazardous Materials Permit
    [OMB No. 2126-xxxx]
    Total Annual Number of Respondents: 3,131.
    Total Annual Burden Hours: 130,866.
    As noted above, the Paperwork Reduction Act requires that Federal 
agencies obtain approval from OMB for each collection of information 
they conduct, sponsor or require through regulations. We are 
coordinating this final rule with a submission to OMB in accordance 
with the Act. Thus, comments on the additional Motor Carrier 
Identification Reports, specifically the MCS-150B, and permit 
applications should go to the Office of Management and Budget. Send 
comments to: Office of Information and Regulatory Affairs, Office of 
Management and Budget, 725 Seventeenth Street, NW, Washington, DC 
20503, Attention: DOT Desk Officer. We particularly request your 
comments on whether the collection of information is useful; the 
accuracy of the estimated

[[Page 39366]]

burden for the information collected; ways to enhance the quality, 
utility, and clarity of the information collected; and ways to minimize 
the burden of the collection of information on respondents, including 
the use of automated collection techniques or other forms of 
information technology.

National Environmental Policy Act

    FMCSA analyzed this final rule for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and 
has determined under the agency's National Environmental Policy Act 
Implementing Procedures, FMCSA Order 5610.1C (published at 69 FR 9680 
[Mar. 1, 2004] with an effective date of March 30, 2004) that this 
action is categorically excluded (CE) under Appendix 2, paragraph 6.d 
of the Order from further environmental documentation. That CE relates 
to establishing regulations and actions concerning the training, 
qualifying, licensing, certifying, and managing of personnel. The 
agency believes that the action includes no extraordinary circumstances 
that will have any effect on the quality of the environment.
    Nevertheless, because the rulemaking concerns hazardous materials 
transportation, the agency prepared an Environmental Assessment 
pursuant to Appendices 5 and 6 of the Order, and placed it in the 
public docket for this rulemaking. You may access the EA on the DMS Web 
site at http://dms.dot.gov. We received no comments on the EA in 
response to the August 19, 2003, supplemental notice of proposed 
rulemaking. Based on the findings of the EA, FMCSA has determined that 
this rulemaking does not pose any significant negative impacts to the 
environment and may result in a net benefit from increased protection 
and monitoring of hazardous materials shipments. Thus, the action does 
not require an environmental impact statement.
    We have also analyzed this rule under section 176(c) of the Clean 
Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. We 
performed a conformity analysis of the CAA according to the procedures 
outlined in appendix 14 of FMCSA Order 5610.1C. This rule will not 
result in any emissions increase, nor will it have any potential to 
result in emissions that are above the general conformity rule's de 
minimis emission threshold levels. Moreover, it is reasonably 
foreseeable that the rule change will not increase total CMV mileage, 
change the routing of CMVs, change how CMVs operate, or change the CMV 
fleet-mix of motor carriers. This action merely establishes that a 
carrier desiring to transport certain hazardous materials in commerce 
must obtain a safety permit from the Department and adhere to 
additional communication standards.

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999.
    Federal hazardous materials transportation law allows States, 
political subdivisions, and Indian tribes to continue their permit 
requirements after the implementation of a Federal safety permit 
program. To the extent a State permit program is equivalent to the 
Federal requirements, no preemption issues would arise. To the extent 
there are differences between Federal and non-Federal requirements, the 
preemption provisions in 49 U.S.C. 5125 will continue to apply to non-
Federal permit requirements, just as those criteria have applied in the 
past.
    FMCSA may preempt some State permitting programs for materials 
covered in this final rule. This preemption is necessary to conform to 
the statutory requirements, but it will have a small overall effect on 
State permit programs. For these reasons, FMCSA has determined this 
rule does not have a substantial direct effect on, or sufficient 
federalism implications for, the States, nor will it limit the 
policymaking discretion of the States.

Executive Order 13045 (Protection of Children)

    FMCSA has analyzed this action under Executive Order 13045, 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 1985, Apr. 23, 1997). The rule will not present an 
environmental risk to health or safety that may disproportionately 
affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217 Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Executive Order 13166 (Limited English Proficiency)

    Executive Order 13166, ``Improving Access to Services for Persons 
with Limited English Proficiency'' (LEP), requires each Federal agency 
to examine the services it provides and to develop reasonable measures 
to ensure that persons seeking government services but limited in their 
English proficiency can meaningfully access these services, consistent 
with, and without unduly burdening, the fundamental mission of the 
agency. Its purpose is to clarify for Federal fund recipients the steps 
those recipients can take to avoid administering programs in a way that 
results in discrimination on the basis of national origin. FMCSA 
believes that this action complies with the principles enunciated in 
the Executive Order.

List of Subjects

49 CFR Part 385

    Administrative practice and procedure, Highway safety, 
Incorporation by reference, Mexico, Motor carriers, Motor vehicle 
safety, Reporting and recordkeeping requirements.

49 CFR Part 386

    Administrative practice and procedure, Brokers, Freight forwarders, 
Hazardous materials transportation, Highway safety, Motor carriers, 
Motor vehicle safety, Penalties.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, reporting and recordkeeping requirements.


0
Accordingly, FMCSA amends parts 385, 386, and 390 of title 49, Code of 
Federal Regulations, as follows:

PART 385--SAFETY FITNESS PROCEDURES

0
1. Revise the authority citation for part 385 to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113, 
13901-13905, 31136, 31144, 31148, and 31502; Sec. 350 of Pub. L. 
107-87; and 49 CFR 1.73.

[[Page 39367]]


0
2. Amend Sec.  385.1 by redesignating paragraph (c) as paragraph (d) 
and by adding a new paragraph (c) to read as follows:


Sec.  385.1  Purpose and scope.

* * * * *
    (c) This part establishes the safety permit program for a motor 
carrier to transport the types and quantities of hazardous materials 
listed in Sec.  385.403.
* * * * *

0
3. Amend Sec.  385.3 by revising the definition of the terms 
``applicable safety regulations or requirements'' and ``commercial 
motor vehicle'' and adding a new acronym ``RSPA'' in alphabetical order 
to read as follows:


Sec.  385.3  Definitions and acronyms.

    Applicable safety regulations or requirements means 49 CFR chapter 
III, subchapter B--Federal Motor Carrier Safety Regulations or, if the 
carrier is an intrastate motor carrier subject to the hazardous 
materials safety permit requirements in subpart E of this part, the 
equivalent State standards; and 49 CFR chapter I, subchapter C--
Hazardous Materials Regulations.
* * * * *
    Commercial motor vehicle shall have the same meaning as described 
in Sec.  390.5 of this subchapter, except that this definition will 
also apply to intrastate motor vehicles subject to the hazardous 
materials safety permit requirements of subpart E of this part.
* * * * *
    RSPA means the Research and Special Programs Administration.
* * * * *

0
4. Add a new Sec.  385.4 to read as follows:


Sec.  385.4  Matter incorporated by reference.

    (a) Incorporation by reference. Part 385 includes references to 
certain matter or materials, as listed in paragraph (b) of this 
section. The text of the materials is not included in the regulations 
contained in part 385. The materials are hereby made a part of the 
regulations in part 385. The Director of the Federal Register has 
approved the materials incorporated by reference in accordance with 5 
U.S.C. 552(a) and 1 CFR part 51. For materials subject to change, only 
the specific version in the regulation is incorporated. Material is 
incorporated as it exists on the date of the approval and a notice of 
any changes in these materials will be published in the Federal 
Register.
    (b) Matter or materials referenced in part 385. The matter or 
materials in this paragraph are incorporated by reference in the 
corresponding sections noted.
    (1) ``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR Part 
173.403,'' January 1, 2004. Information and copies may be obtained from 
the Commercial Vehicle Safety Alliance, 1101 17th Street, NW, Suite 
803, Washington, DC 20036. Phone number (202) 775-1623.
    (2) All of the materials incorporated by reference are available 
for inspection at: The Federal Motor Carrier Safety Administration, 
Office of Enforcement and Compliance, 400 Seventh Street, SW, 
Washington, DC 20590; and the National Archives and Records 
Administration (NARA). For information on the availability of this 
material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
0
5. In Sec.  385.5 revise the introductory text to read as follows:


Sec.  385.5  Safety fitness standard.

    The Satisfactory safety rating is based on the degree of compliance 
with the safety fitness standard for motor carriers. For intrastate 
motor carriers subject to the hazardous materials safety permit 
requirements of subpart E of this part, the motor carrier must meet the 
equivalent State requirements. To meet the safety fitness standard, the 
motor carrier must demonstrate it has adequate safety management 
controls in place, which function effectively to ensure acceptable 
compliance with applicable safety requirements to reduce the risk 
associated with:
* * * * *

0
6. Add a new subpart E to part 385 to read as follows:
Subpart E--Hazardous Materials Safety Permits
Sec.
385.401 What is the purpose and scope of this subpart?
385.402 What definitions are used in this subpart?
385.403 Who must hold a safety permit?
385.405 How does a motor carrier apply for a safety permit?
385.407 What conditions must a motor carrier satisfy for FMCSA to 
issue a safety permit?
385.409 When may a temporary safety permit be issued to a motor 
carrier?
385.411 Must a motor carrier obtain a safety permit if it has a 
State permit?
385.413 What happens if a motor carrier receives a proposed safety 
rating that is less than Satisfactory?
385.415 What operational requirements apply to the transportation of 
a hazardous material for which a permit is required?
385.417 Is a motor carrier's safety permit number available to 
others?
385.419 How long is a safety permit effective?
385.421 Under what circumstances will a safety permit be subject to 
revocation or suspension by FMCSA?
385.423 Does a motor carrier have a right to an administrative 
review of a denial, suspension, or revocation of a safety permit?

Subpart E--Hazardous Materials Safety Permits


Sec.  385.401  What is the purpose and scope of this subpart?

    (a) This subpart contains the requirements for obtaining and 
maintaining a safety permit to transport certain hazardous materials. 
No one may transport the materials listed in Sec.  385.403 without a 
safety permit required by this subpart.
    (b) This subpart includes:
    (1) Definitions of terms used in this subpart;
    (2) The list of hazardous materials that require a safety permit if 
transported in commerce;
    (3) The requirements and procedures a carrier must follow in order 
to be issued a safety permit and maintain a safety permit;
    (4) The procedures for a motor carrier to follow to initiate an 
administrative review of a denial, suspension, or revocation of a 
safety permit.


Sec.  385.402  What definitions are used in this subpart?

    (a) The definitions in parts 390 and 385 of this chapter apply to 
this subpart, except where otherwise specifically noted.
    (b) As used in this part,
    Hazardous material has the same meaning as under Sec.  171.8 of 
this title: A substance or material that the Secretary of 
Transportation has determined is capable of posing an unreasonable risk 
to health, safety, and property when transported in commerce, and has 
designated as hazardous under Sec. 5103 of Federal hazardous materials 
transportation law (49 U.S.C. 5103). The term includes hazardous 
substances, hazardous wastes, marine pollutants, elevated temperature 
materials, materials designated as hazardous in the Hazardous Materials 
Table (see Sec.  172.101 of this title), and materials that meet the 
defining criteria for hazard classes and divisions in part 173 of this 
title.
    Hazmat employee has the same meaning as under Sec.  171.8 of this 
title: A

[[Page 39368]]

person who is employed by a hazmat employer as defined under Sec.  
171.8 of this title, and who in the course of employment directly 
affects hazardous materials transportation safety. This term includes 
an owner-operator of a motor vehicle that transports hazardous 
materials in commerce. This term includes an individual who, during the 
course of employment:
    (1) Loads, unloads, or handles hazardous materials;
    (2) Manufactures, tests, reconditions, repairs, modifies, marks, or 
otherwise represents containers, drums, or packaging as qualified for 
use in the transportation of hazardous materials;
    (3) Prepares hazardous materials for transportation;
    (4) Is responsible for the safe transportation of hazardous 
materials; or
    (5) Operates a vehicle used to transport hazardous materials.
    Liquefied natural gas (LNG) means a Division 2.1 liquefied natural 
gas material that is transported in a liquid state with a methane 
content of 85 percent or more.
    Safety permit means a document issued by FMCSA that contains a 
permit number and confers authority to transport in commerce the 
hazardous materials listed in Sec.  385.403.
    Shipment means the offering or loading of hazardous materials at 
one loading facility using one transport vehicle, or the transport of 
that transport vehicle.


Sec.  385.403  Who must hold a safety permit?

    After the date following January 1, 2005, that a motor carrier is 
required to file a Motor Carrier Identification Report Form (MCS-150) 
according to the schedule set forth in Sec.  390.19(a) of this chapter, 
the motor carrier may not transport in interstate or intrastate 
commerce any of the following hazardous materials, in the quantity 
indicated for each, unless the motor carrier holds a safety permit:
    (a) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined in Sec.  173.403 of this title;
    (b) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 
(explosive) material or an amount of a Division 1.5 (explosive) 
material requiring placarding under part 172 of this title;
    (c) More than one liter (1.08 quarts) per package of a ``material 
poisonous by inhalation,'' as defined in Sec.  171.8 of this title, 
that meets the criteria for ``hazard zone A,'' as specified in Sec.  
173.116(a) or Sec.  173.133(a) of this title;
    (d) A ``material poisonous by inhalation,'' as defined in Sec.  
171.8 of this title, that meets the criteria for ``hazard zone B,'' as 
specified in Sec.  173.116(a) or Sec.  173.133(a) of this title in a 
bulk packaging (capacity greater than 450 L [119 gallons]);
    (e) A ``material poisonous by inhalation,'' as defined in Sec.  
171.8 of this title, that meets the criteria for ``hazard zone C,'' or 
``hazard zone D,'' as specified in Sec.  173.116(a) of this title, in a 
packaging having a capacity equal to or greater than 13,248 L (3,500) 
gallons; or
    (f) A shipment of compressed or refrigerated liquefied methane or 
liquefied natural gas, or other liquefied gas with a methane content of 
at least 85 percent, in a bulk packaging having a capacity equal to or 
greater than 13,248 L (3,500 gallons).


Sec.  385.405  How does a motor carrier apply for a safety permit?

    (a) Application form(s). To apply for a new safety permit or 
renewal of the safety permit, a motor carrier must complete and submit 
Form MCS-150B, Combined Motor Carrier Identification Report and HM 
Permit Application.
    (1) The Form MCS-150B will also satisfy the requirements for 
obtaining and renewing a DOT identification number; there is no need to 
complete Form MCS-150, Motor Carrier Identification Report.
    (2) A new entrant, as defined in Sec.  385.3, must also submit Form 
MCS-150A, Safety Certification for Application (Safety Certification 
for Application for USDOT Number) (see subpart D of this part).
    (b) Where to get forms and instructions. The forms listed in 
paragraph (a) of this section, and instructions for completing the 
forms, may be obtained on the Internet at http://www.fmcsa.dot.gov, or 
by contacting FMCSA at Federal Motor Carrier Safety Administration, MC-
RIS, Room 8214, 400 7th Street, SW, Washington, DC 20590, Telephone: 1-
800-832-5660.
    (c) Signature and certification. An official of the motor carrier 
must sign and certify that the information is correct on each form the 
motor carrier submits.
    (d) Updating information on Form MCS-150B. A motor carrier holding 
a safety permit must report to FMCSA any change in the information on 
its Form MCS-150B within 30 days of the change. The motor carrier must 
use Form MCS-150B to report the new information (contact information in 
paragraph (b) of this section).


Sec.  385.407  What conditions must a motor carrier satisfy for FMCSA 
to issue a safety permit?

    (a) Motor carrier safety performance. (1) The motor carrier must 
have a ``Satisfactory'' safety rating assigned by either FMCSA, 
pursuant to the Safety Fitness Procedures of this part, or the State in 
which the motor carrier has its principal place of business, if the 
State has adopted and implemented safety fitness procedures that are 
equivalent to the procedures in subpart A of this part; and,
    (2) FMCSA will not issue a safety permit to a motor carrier that:
    (i) Does not certify that it has a satisfactory security program as 
required in Sec.  385.407(b);
    (ii) Has a crash rate in the top 30 percent of the national average 
as indicated in the FMCSA Motor Carrier Management Information System 
(MCMIS); or
    (iii) Has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average as indicated 
in the MCMIS.
    (b) Satisfactory security program. The motor carrier must certify 
that it has a satisfactory security program, including:
    (1) A security plan meeting the requirements of part 172, subpart I 
of this title, and addressing how the carrier will ensure the security 
of the written route plan required by this part;
    (2) A communications plan that allows for contact between the 
commercial motor vehicle operator and the motor carrier to meet the 
periodic contact requirements in Sec.  385.415(c)(1); and
    (3) Successful completion by all hazmat employees of the security 
training required in Sec.  172.704(a)(4) and (a)(5) of this title.
    (c) Registration with the Research and Special Programs 
Administration (RSPA). The motor carrier must be registered with RSPA 
in accordance with part 107, subpart G of this title.


Sec.  385.409  When may a temporary safety permit be issued to a motor 
carrier?

    (a) Temporary safety permit. If a motor carrier does not meet the 
criteria in Sec.  385.407(a), FMCSA may issue it a temporary safety 
permit. To obtain a temporary safety permit a motor carrier must 
certify on Form MCS-150B that it is operating in full compliance with 
the HMRs; with the FMCSRs, and/or comparable State regulations, 
whichever is applicable; and with the minimum financial responsibility 
requirements in part 387 of this chapter or in State regulations, 
whichever is applicable.
    (b) FMCSA will not issue a temporary safety permit to a motor 
carrier that:

[[Page 39369]]

    (1) Does not certify that it has a satisfactory security program as 
required in Sec.  385.407(b);
    (2) Has a crash rate in the top 30 percent of the national average 
as indicated in the FMCSA's MCMIS; or
    (3) Has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average as indicated 
in the MCMIS.
    (c) A temporary safety permit shall be valid for 180 days after the 
date of issuance or until the motor carrier is assigned a new safety 
rating, whichever occurs first.
    (1) A motor carrier that receives a Satisfactory safety rating will 
be issued a safety permit (see Sec.  385.421).
    (2) A motor carrier that receives a less than Satisfactory safety 
rating is ineligible for a safety permit and will be subject to 
revocation of its temporary safety permit.
    (d) If a motor carrier has not received a safety rating within the 
180-day time period, FMCSA will extend the effective date of the 
temporary safety permit for an additional 60 days, provided the motor 
carrier demonstrates that it is continuing to operate in full 
compliance with the FMCSRs and HMRs.


Sec.  385.411  Must a motor carrier obtain a safety permit if it has a 
State permit?

    Yes. However, if FMCSA is able to verify that a motor carrier has a 
safety permit issued by a State under a program that FMCSA has 
determined to be equivalent to the provisions of this subpart, FMCSA 
will immediately issue a safety permit to the motor carrier upon 
receipt of an application in accordance with Sec.  385.405, without 
further inspection or investigation.


Sec.  385.413  What happens if a motor carrier receives a proposed 
safety rating that is less than Satisfactory?

    (a) If a motor carrier does not already have a safety permit, it 
will not be issued a safety permit (including a temporary safety 
permit) unless and until a Satisfactory safety rating is issued to the 
motor carrier.
    (b) If a motor carrier holds a safety permit (including a temporary 
safety permit), the safety permit will be subject to revocation or 
suspension (see Sec.  385.421).


Sec.  385.415  What operational requirements apply to the 
transportation of a hazardous material for which a permit is required?

    (a) Information that must be carried in the vehicle. During 
transportation, the following must be maintained in each commercial 
motor vehicle that transports a hazardous material listed in Sec.  
385.403 and must be made available to an authorized official of a 
Federal, State, or local government agency upon request.
    (1) A copy of the safety permit or another document showing the 
permit number, provided that document clearly indicates the number is 
the FMCSA Safety Permit number;
    (2) A written route plan that meets the requirements of Sec.  
397.101 of this chapter for highway route-controlled Class 7 
(radioactive) materials or Sec.  397.67 of this chapter for Division 
1.1, 1.2, and 1.3 (explosive) materials; and
    (3) The telephone number, including area code or country code, of 
an employee of the motor carrier or representative of the motor carrier 
who is familiar with the routing of the permitted material. The motor 
carrier employee or representative must be able to verify that the 
shipment is within the general area for the expected route for the 
permitted material. The telephone number, when called, must be answered 
directly by the motor carrier or its representative at all times while 
the permitted material is in transportation including storage 
incidental to transportation. Answering machines are not sufficient to 
meet this requirement.
    (b)(1) Inspection of vehicle transporting Class 7 (radioactive) 
materials. Before a motor carrier may transport a highway route 
controlled quantity of a Class 7 (radioactive) material, the motor 
carrier must have a pre-trip inspection performed on each motor vehicle 
to be used to transport a highway route controlled quantity of a Class 
7 (radioactive) material, in accordance with the requirements of the 
``North American Standard Out-of-Service Criteria and Level VI 
Inspection Procedures and Out-of-Service Criteria for Commercial 
Highway Vehicles Transporting Transuranics and Highway Route Controlled 
Quantities of Radioactive Materials as defined in 49 CFR Part 
173.403,'' January 1, 2004, which is incorporated by reference. The 
Director of the Federal Register has approved the materials 
incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR 
part 51. Information and copies may be obtained from the Commercial 
Vehicle Safety Alliance, 1101 17th Street, NW, Suite 803, Washington, 
DC 20036. Phone number (202) 775-1623.
    (2) All materials incorporated by reference are available for 
inspection at the Federal Motor Carrier Safety Administration, Office 
of Enforcement and Compliance, 400 Seventh Street, SW., Washington, DC 
20590; and the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call (202) 
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (c) Additional requirements. A motor carrier transporting hazardous 
materials requiring a permit under this part must also meet the 
following requirements:
    (1) The operator of a motor vehicle used to transport a hazardous 
material listed in Sec.  385.403 must follow the communications plan 
required in Sec.  385.407(b)(2) to make contact with the carrier at the 
beginning and end of each duty tour, and at the pickup and delivery of 
each permitted load. Contact may be by telephone, radio or via an 
electronic tracking or monitoring system. The motor carrier or driver 
must maintain a record of communications for 6 months after the initial 
acceptance of a shipment of hazardous material for which a safety 
permit is required. The record of communications must contain the name 
of the driver, identification of the vehicle, permitted material(s) 
being transported, and the date, location, and time of each contact 
required under this section.
    (2) The motor carrier should contact the Transportation Security 
Administration's Transportation Security Coordination Center (703-563-
3236 or 703-563-3237) at any time the motor carrier suspects its 
shipment of a hazardous material listed in Sec.  385.403 is lost, 
stolen or otherwise unaccounted for.


Sec.  385.417  Is a motor carrier's safety permit number available to 
others?

    Upon request, a motor carrier must provide the number of its safety 
permit to a person who offers a hazardous material listed in Sec.  
385.403 for transportation in commerce. A motor carrier's permit number 
will also be available to the public on the FMCSA Safety and Fitness 
Electronic Records System at http://www.safersys.org.


Sec.  385.419  How long is a safety permit effective?

    Unless suspended or revoked, a safety permit (other than a 
temporary safety permit) is effective for two years, except that:
    (a) A safety permit will be subject to revocation if a motor 
carrier fails to submit a renewal application (Form MCS-150B) in 
accordance with the schedule set forth for filing Form MCS-150 in Sec.  
390.19(a) of this chapter; and
    (b) An existing safety permit will remain in effect pending FMCSA's 
processing of an application for renewal if a motor carrier submits the 
required application (Form MS-150B) in accordance with the schedule set 
forth

[[Page 39370]]

in Sec.  390.19(a)(2) and (a)(3) of this chapter.


Sec.  385.421  Under what circumstances will a safety permit be subject 
to revocation or suspension by FMCSA?

    (a) Grounds. A safety permit will be subject to revocation or 
suspension by FMCSA for the following reasons:
    (1) A motor carrier fails to submit a renewal application (Form 
MCS-150B) in accordance with the schedule set forth in Sec.  
390.19(a)(2) and (a)(3) of this chapter;
    (2) A motor carrier provides any false or misleading information on 
its application (Form MCS-150B), on Form MCS-150A (when required), or 
as part of updated information it is providing on Form MCS-150B (see 
Sec.  385.405(d));
    (3) A motor carrier is issued a final safety rating that is less 
than Satisfactory;
    (4) A motor carrier fails to maintain a satisfactory security plan 
as set forth in Sec.  385.407(b);
    (5) A motor carrier fails to comply with applicable requirements in 
the FMCSRs, the HMRs, or compatible State requirements governing the 
transportation of hazardous materials, in a manner showing that the 
motor carrier is not fit to transport the hazardous materials listed in 
Sec.  385.403;
    (6) A motor carrier fails to comply with an out-of-service order;
    (7) A motor carrier fails to comply with any other order issued 
under the FMCSRs, the HMRs, or compatible State requirements governing 
the transportation of hazardous materials, in a manner showing that the 
motor carrier is not fit to transport the hazardous materials listed in 
Sec.  385.403;
    (8) A motor carrier fails to maintain the minimum financial 
responsibility required by Sec.  387.9 of this chapter or an applicable 
State requirement;
    (9) A motor carrier fails to maintain current hazardous materials 
registration with the Research and Special Programs Administration; or
    (10) A motor carrier loses its operating rights or has its 
registration suspended in accordance with Sec.  386.83 or Sec.  386.84 
of this chapter for failure to pay a civil penalty or abide by a 
payment plan.
    (b) Determining whether a safety permit is revoked or suspended. A 
motor carrier's safety permit will be suspended the first time any of 
the conditions specified in paragraph (a) of this section are found to 
apply to the motor carrier. A motor carrier's safety permit will be 
revoked if any of the conditions specified in paragraph (a) of this 
section are found to apply to the motor carrier and the carrier's 
safety permit has been suspended in the past for any of the reasons 
specified in paragraph (a) of this section.
    (c) Effective date of suspension or revocation. A suspension or 
revocation of a safety permit is effective:
    (1) Immediately after FMCSA determines that an imminent hazard 
exists, after FMCSA issues a final safety rating that is less than 
Satisfactory, or after a motor carrier loses its operating rights or 
has its registration suspended for failure to pay a civil penalty or 
abide by a payment plan;
    (2) Thirty (30) days after service of a written notification that 
FMCSA proposes to suspend or revoke a safety permit, if the motor 
carrier does not submit a written request for administrative review 
within that time period; or
    (3) As specified in Sec.  385.423(c), when the motor carrier 
submits a written request for administrative review of FMCSA's proposal 
to suspend or revoke a safety permit.
    (4) A motor carrier whose safety permit has been revoked will not 
be issued a replacement safety permit or temporary safety permit for 
365 days from the time of revocation.


Sec.  385.423  Does a motor carrier have a right to an administrative 
review of a denial, suspension, or revocation of a safety permit?

    A motor carrier has a right to an administrative review pursuant to 
the following procedures and conditions:
    (a) Less than Satisfactory safety rating. If a motor carrier is 
issued a proposed safety rating that is less than Satisfactory, it has 
the right to request (1) an administrative review of a proposed safety 
rating, as set forth in Sec.  385.15, and (2) a change to a proposed 
safety rating based on corrective action, as set forth in Sec.  385.17. 
After a motor carrier has had an opportunity for administrative review 
of, or change to, a proposed safety rating, FMCSA's issuance of a final 
safety rating constitutes final agency action, and a motor carrier has 
no right to further administrative review of FMCSA's denial, 
suspension, or revocation of a safety permit when the motor carrier has 
been issued a final safety rating that is less than Satisfactory.
    (b) Failure to pay civil penalty or abide by payment plan. If a 
motor carrier is notified that failure to pay a civil penalty will 
result in suspension or termination of its operating rights, it has the 
right to an administrative review of that proposed action in a show 
cause proceeding, as set forth in Sec.  386.83(b) or Sec.  386.84(b) of 
this chapter. The decision by FMCSA's Chief Safety Officer in the show 
cause proceeding constitutes final agency action, and a motor carrier 
has no right to further administrative review of FMCSA's denial, 
suspension, or revocation of a safety permit when the motor carrier has 
lost its operating rights or had its registration suspended for failure 
to pay a civil penalty or abide by a payment plan.
    (c) Other grounds. Under circumstances other than those set forth 
in paragraphs (a) and (b) of this section, a motor carrier may submit a 
written request for administrative review within 30 days after service 
of a written notification that FMCSA has denied a safety permit, that 
FMCSA has immediately suspended or revoked a safety permit, or that 
FMCSA has proposed to suspend or revoke a safety permit. The rules for 
computing time limits for service and requests for extension of time in 
Sec. Sec.  386.31 and 386.33 of this chapter apply to the proceedings 
on a request for administrative review under this section.
    (1) The motor carrier must send or deliver its written request for 
administrative review to FMCSA Chief Safety Officer, with a copy to 
FMCSA Chief Counsel, at the following addresses:
    (i) FMCSA Chief Safety Officer, Federal Motor Carrier Safety 
Administration, c/o Adjudications Counsel (MC-CC), 400 Seventh Street, 
SW., Washington, DC 20590.
    (ii) FMCSA Chief Counsel, Federal Motor Carrier Safety 
Administration, Office of the Chief Counsel, Room 8125, 400 Seventh 
Street, SW., Washington, DC 20590.
    (2) A request for administrative review must state the specific 
grounds for review and include all information, evidence, and arguments 
upon which the motor carrier relies to support its request for 
administrative review.
    (3) Within 30 days after service of a written request for 
administrative review, the Office of the Chief Counsel shall submit to 
the Chief Safety Officer a written response to the request for 
administrative review. The Office of the Chief Counsel must serve a 
copy of its written response on the motor carrier requesting 
administrative review.
    (4) The Chief Safety Officer may decide a motor carrier's request 
for administrative review on the written submissions, hold a hearing 
personally, or refer the request to an administrative law judge for a 
hearing and recommended decision. The Chief Safety Officer or 
administrative law judge is authorized to specify, and must notify the 
parties of, specific procedural rules to be followed in the proceeding 
(which may include the procedural

[[Page 39371]]

rules in part 386 of this chapter that are considered appropriate).
    (5) If a request for administrative review is referred to an 
administrative law judge, the recommended decision of the 
administrative law judge becomes the final decision of the Chief Safety 
Officer 45 days after service of the recommended decision is served, 
unless either the motor carrier or the Office of the Chief Counsel 
submits a petition for review to the Chief Safety Officer (and serves a 
copy of its petition on the other party) within 15 days after service 
of the recommended decision. In response to a petition for review of a 
recommended decision of an administrative law judge:
    (i) The other party may submit a written reply within 15 days of 
service of the petition for review.
    (ii) The Chief Safety Officer may adopt, modify, or set aside the 
recommended decision of an administrative law judge, and may also 
remand the petition for review to the administrative law judge for 
further proceedings.
    (6) The Chief Safety Officer will issue a final decision on any 
request for administrative review when:
    (i) The request for administrative review has not been referred to 
an administrative law judge;
    (ii) A petition for review of a recommended decision by an 
administrative law judge has not been remanded to the administrative 
law judge for further proceedings; or
    (iii) An administrative law judge has held further proceedings on a 
petition for review and issued a supplementary recommended decision.
    (7) The decision of the Chief Safety Officer (including a 
recommended decision of an administrative law judge that becomes the 
decision of the Chief Safety Officer under paragraph (c)(5) of this 
section) constitutes final agency action, and there is no right to 
further administrative reconsideration or review.
    (8) Any appeal of a final agency action under this section must be 
taken to an appropriate United States Court of Appeals. Unless the 
Court of Appeals issues a stay pending appeal, the final agency action 
shall not be suspended while the appeal is pending.

Appendix B to Part 385--Explanation of Safety Rating Process

0
7. Amend Appendix B to part 385 by adding, to the introductory text 
before Paragraph I, a new paragraph (e) to read as follows:
* * * * *
    (e) The hazardous materials safety permit requirements of part 
385, subpart E apply to intrastate motor carriers. Intrastate motor 
carriers that are subject to the hazardous materials safety permit 
requirements in subpart E will be rated using equivalent State 
requirements whenever the FMCSRs are referenced in this appendix.
* * * * *

0
8. Amend Appendix B to part 385 by adding to the List of Acute and 
Critical Regulations under Paragraph VII the following information in 
numerical order after Sec.  397.67(d):
* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  397.101(d) Requiring or permitting the operation of a 
motor vehicle containing highway route-controlled quantity, as 
defined in Sec.  173.403, of radioactive materials that is not 
accompanied by a written route plan.
* * * * *

0
9. Amend Appendix B to part 385 by adding to the List of Acute and 
Critical Regulations under Paragraph VII the following information in 
numerical order after Sec.  171.16:
* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  172.313(a) Accepting for transportation or transporting a 
package containing a poisonous-by-inhalation material that is not 
marked with the words ``Inhalation Hazard'' (acute).
    Sec.  172.704(a)(4) Failing to provide security awareness 
training (critical).
    Sec.  172.704(a)(5) Failing to provide in-depth security 
awareness training (critical).
    Sec.  172.800(b) Transporting HM without a security plan 
(acute).
    Sec.  172.800(b) Transporting HM without a security plan that 
conforms to Subpart I requirements (acute).
    Sec.  172.800(b) Failure to adhere to a required security plan 
(acute).
    Sec.  172.802(b) Failure to make copies of security plan 
available to hazmat employees (critical).
    Sec.  173.24(b)(1) Accepting for transportation or transporting 
a package that has an identifiable release of a hazardous material 
to the environment (acute).
    Sec.  173.421(a) Accepting for transportation or transporting a 
Class 7 (radioactive) material described, marked, and packaged as a 
limited quantity when the radiation level on the surface of the 
package exceeds 0.005mSv/hour (0.5 mrem/hour) (acute).
    Sec.  173.431(a) Accepting for transportation or transporting in 
a Type A packaging a greater quantity of Class 7 (radioactive) 
material than authorized (acute).
    Sec.  173.431(b) Accepting for transportation or transporting in 
a Type B packaging a greater quantity of Class 7 (radioactive) 
material than authorized (acute).
    Sec.  173.441(a) Accepting for transportation or transporting a 
package containing Class 7 (radioactive) material with external 
radiation exceeding allowable limits (acute).
    Sec.  173.442(b) Accepting for transportation or transporting a 
package containing Class 7 (radioactive) material when the 
temperature of the accessible external surface of the loaded package 
exceeds 50 [deg]C (122 [deg]F) in other than an exclusive use 
shipment, or 85 [deg]C (185 [deg]F) in an exclusive use shipment 
(acute).
    Sec.  173.443(a) Accepting for transportation or transporting a 
package containing Class 7 (radioactive) material with removable 
contamination on the external surfaces of the package in excess of 
permissible limits (acute).
* * * * *

0
10. Amend Appendix B to part 385 by adding to the List of Acute and 
Critical Regulations under Paragraph VII the following information in 
numerical order after Sec.  177.800(c):
* * * * *

VII. List of Acute and Critical Regulations

* * * * *
    Sec.  177.801 Accepting for transportation or transporting a 
forbidden material (acute).
    Sec.  177.835(a) Loading or unloading a Class 1 (explosive) 
material with the engine running (acute).
    Sec.  177.835(c) Accepting for transportation or transporting 
Division 1.1, 1.2, or 1.3 (explosive) materials in a motor vehicle 
or combination of vehicles that is not permitted (acute).
    Sec.  177.835(j) Transferring Division 1.1, 1.2, or 1.3 
(explosive) materials between containers or motor vehicles when not 
permitted (acute).
* * * * *

PART 386--RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT 
FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS

0
11. The authority citation for part 386 continues to read as follows:

    Authority: 49 U.S.C. 13301, 13902, 31132-31133, 31136, 31502, 
31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 
note); sec. 217, Pub. L. 105-159, 113 stat. 1748, 1767; and 49 CFR 
1.73.

Appendix B to Part 386--Penalty Schedule; Violations and Maximum 
Monetary Penalties

0
12. Amend Appendix B to part 386 by revising the introductory text to 
paragraph (e) to read as follows:
* * * * *
    (e) Violations of the Hazardous Materials Regulations (HMRs) and 
Safety Permitting Regulations found in subpart E of Part 385. This 
paragraph applies to violations by motor carriers, drivers, shippers 
and other persons who transport hazardous materials on the highway 
in commercial motor vehicles or cause hazardous materials to be so 
transported.
* * * * *

[[Page 39372]]

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

0
13. The authority citation for part 390 continues to read as follows:

    Authority: 49 U.S.C. 13301, 13902, 31131, 31133, 31502, and 
31504, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); and 
49 CFR 1.73.


0
14. Amend Sec.  390.3 by adding a new paragraph (g) to read as follows:


Sec.  390.3  General applicability.

* * * * *
    (g) Motor carriers that transport hazardous materials in intrastate 
commerce. The rules in the following provisions of subchapter B of this 
chapter apply to motor carriers that transport hazardous materials in 
intrastate commerce and to the motor vehicles that transport hazardous 
materials in intrastate commerce:
    (1) Part 385, subparts A and E, for carriers subject to the 
requirements of Sec.  385.403 of this chapter.
    (2) Part 386, Rules of practice for motor carrier, broker, freight 
forwarder, and hazardous materials proceedings, of this chapter.
    (3) Part 387, Minimum Levels of Financial Responsibility for Motor 
Carriers, to the extent provided in Sec.  387.3 of this chapter.
    (4) Section 390.19, Motor carrier identification report, and Sec.  
390.21, Marking of CMVs, for carriers subject to the requirements of 
Sec.  385.403 of this chapter. Intrastate motor carriers operating 
prior to January 1, 2005, are excepted from Sec.  390.19(a)(1).
* * * * *

0
15. Amend Sec.  390.19 by revising paragraphs (a) introductory text, 
(b), (c) introductory text, (c)(2), (d), (e), and (f) to read as 
follows:


Sec.  390.19  Motor carrier identification report.

    (a) Each motor carrier that conducts operations in interstate 
commerce (or intrastate commerce if the carrier requires a Safety 
Permit as per Sec.  385.400 of this chapter) must file a Motor Carrier 
Identification Report, Form MCS-150, or the Combined Motor Carrier 
Identification Report and HM Permit Application, Form MCS-150B for 
permitted carriers, at the following times:
* * * * *
    (b) The Motor Carrier Identification Report, Form MCS-150, and the 
Combined Motor Carrier Identification Report and HM Permit Application, 
Form MCS-150B, with complete instructions, are available from the FMCSA 
Web site at: http://www.fmcsa.dot.gov (Keyword ``MCS-150'' or ``MCS-
150B''); from all FMCSA Service Centers and Division offices 
nationwide; or by calling 1-800-832-5660.
    (c) The completed Motor Carrier Identification Report, Form MCS-
150, or Combined Motor Carrier Identification Report and HM Permit 
Application, Form MCS-150B, must be filed with FMCSA Office of 
Information Management.
    (1) * * *
    (2) A for-hire motor carrier should submit the Form MCS-150, or 
Form MCS-150B, along with its application for operating authority (Form 
OP-1 or OP-2), to the appropriate address referenced on that form, or 
may submit it electronically or by mail separately to the address 
mentioned in this section.
    (d) Only the legal name or a single trade name of the motor carrier 
may be used on the motor carrier identification report (Form MCS-150 or 
MCS-150B).
    (e) A motor carrier that fails to file a Motor Carrier 
Identification Report, Form MCS-150, or the Combined Motor Carrier 
Identification Report and HM Permit Application, Form MCS-150B, or 
furnishes misleading information or makes false statements upon Form 
MCS-150 or Form MCS-150B, is subject to the penalties prescribed in 49 
U.S.C. 521(b)(2)(B).
    (f) Upon receipt and processing of the Motor Carrier Identification 
Report, Form MCS-150, or the Combined Motor Carrier Identification 
Report and HM Permit Application, Form MCS-150B, the FMCSA will issue 
the motor carrier an identification number (USDOT Number). The motor 
carrier must display the number on each self-propelled CMV, as defined 
in Sec.  390.5, along with the additional information required by Sec.  
390.21.
* * * * *

    Issued on: June 22, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04-14654 Filed 6-29-04; 8:45 am]
BILLING CODE 4910-EX-P