[Federal Register Volume 69, Number 160 (Thursday, August 19, 2004)]
[Rules and Regulations]
[Pages 51391-51393]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19004]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 383

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


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

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

ACTION: Interim final rule; delay of compliance date.

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SUMMARY: FMCSA issues this rule to amend the compliance date in its 
Interim final rule (IFR) published in the May 5, 2003 Federal Register 
regarding limitations on State issuance of a commercial driver's 
license (CDL) with a hazardous materials endorsement. States must not 
issue, renew, transfer or upgrade a CDL with a hazardous materials 
endorsement unless the Transportation Security Administration (TSA) has 
first conducted a background records check of the applicant and 
determined the applicant does not pose a security risk warranting 
denial of the hazardous materials endorsement. FMCSA is changing the 
date by which States must comply with TSA regulations to coincide with 
the new compliance date established by TSA. The compliance date is 
changed from April 1, 2004, to January 31, 2005.

DATES: Effective: This rule is effective on September 20, 2004. 
Compliance: States must comply with this rule by January 31, 2005.

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

SUPPLEMENTARY INFORMATION:

Small Entity Inquiries

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

Summary of Today's Action

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

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

    FMCSA shares with TSA responsibility for implementing sec. 1012 of 
the USA PATRIOT Act.
    For reasons described in its April 6, 2004 final rule (Security 
Threat Assessment for Individuals Applying for a Hazardous Materials 
Endorsement for a Commercial Drivers License; Final Rule, 69 FR 17969), 
TSA is amending the April 1, 2004, deadline for States to begin 
collecting fingerprints from a driver requesting authority to transport 
hazardous materials in commerce. The new compliance date is January 31, 
2005. Therefore, FMCSA revises the compliance date for hazardous 
materials security requirements published in its companion IFR (68 FR 
23844, May 5, 2003) from April 1, 2004 to January 31, 2005 to coincide 
with the new TSA deadline.

Rulemaking Analyses and Notices

Justification for Immediate Adoption

    FMCSA is issuing this IFR without prior notice and opportunity to 
comment pursuant to its authority under section 4(a) of the 
Administrative Procedure Act (5 U.S.C. 553(b)). This provision allows 
the agency to issue a final rule without notice and opportunity to 
comment when the agency for good cause finds that notice and comment 
procedures are ``impracticable, unnecessary or contrary to the public 
interest.'' This amended IFR is ministerial in nature. It changes the 
date on which States are required to collect fingerprints from 
individuals who are applying for, renewing, upgrading or transferring a 
CDL with a hazardous materials endorsement. Because the rule relieves a 
burden on stakeholders by extending the compliance date, FMCSA has 
concluded

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that it is within the scope of the May 5, 2003, IFR and that further 
notice and comment on this issue are unnecessary.
    The agency intends to issue a final rule at a later date and will 
respond to comments to the May 5, 2003 IFR at that time.

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

    The FMCSA has determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866, and is 
significant within the meaning of the 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. This rule does not impose any costs on any public, private, 
or government sector, therefore further economic analysis is 
unnecessary. The Office of Management and Budget has completed its 
review of this rule under Executive Order 12866.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), as amended, was 
enacted by Congress to ensure that small entities (small businesses, 
small not-for-profit organizations, and small governmental 
jurisdictions) are not unnecessarily or disproportionately burdened by 
Federal regulations. The Regulatory Flexibility Act requires agencies 
to review rules to determine if they have ``a significant economic 
impact on a substantial number of small entities.'' I certify that the 
final rule will not have a significant economic impact on a substantial 
number of small entities. As noted above, this final rule applies only 
to State governments and does not impose any costs on any public, 
private, or government sector.

Executive Order 13132 (Federalism)

    Executive Order 13132 requires FMCSA to develop an accountable 
process to ensure ``meaningful and timely input by State and local 
officials in the development of regulatory policies that have 
federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under the Executive Order, FMCSA may construe a Federal 
statute to preempt State law only where, among other things, the 
exercise of State authority conflicts with the exercise of Federal 
authority under the federal statute.
    Although this amended interim final rule potentially has direct 
effects on the States, they are not substantial because the rule will 
allow States more time to comply with the TSA regulation published on 
April 6, 2004 (69 FR 17969), and thus avoid the withholding of Federal-
aid highway funds that could result from non-compliance with the TSA 
rule. FMCSA has determined that this amended interim final rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism assessment.
    The provisions of 49 U.S.C. 31314 require DOT to withhold certain 
Federal-aid highway funds from States that fail to comply substantially 
with the requirements for State participation in the CDL program. As 
discussed in detail in the May 5 IFR [see 68 FR at 23847-23848], those 
provisions apply also to State compliance with portions of the TSA rule 
implementing sec. 1012 that apply to States. In addition, 49 U.S.C. 
31312 authorizes DOT to prohibit States from issuing CDLs if the 
Secretary determines ``that a State is in substantial noncompliance'' 
with 49 U.S.C. chapter 313. These penalties are available for DOT to 
use when and if appropriate to encourage State compliance with TSA's 
sec. 1012 rule.

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 do not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information it 
conducts, sponsors, or requires through regulations. This amended 
interim final rule does not contain any information collection 
requirements.

National Environmental Policy Act

    The agency analyzed this amended interim final rule for the purpose 
of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 
et seq.) and determined under our environmental procedures Order 
5610.1, issued on March 1, 2004 and effective March 31, 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 taken pursuant to these 
regulations that concern the training, qualifying, licensing, 
certifying, and managing of personnel. In addition, the agency believes 
that the action includes no extraordinary circumstances that will have 
any effect on the quality of the environment. Thus, the action does not 
require an environmental assessment or an environmental impact 
statement.
    We have also analyzed this rule under sec. 175(c) of the Clean Air 
Act, as amended (CAA) sec. 176(c), (42 U.S.C. 7506(c)) and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's General Conformity 
requirement since it involves policy development and civil enforcement 
activities, such as, investigations, inspections, examinations, and the 
training of law enforcement personnel. See 40 CFR 93.153(c)(2). It 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 how CMVs operate, the routing of CMVs, or the CMV fleet-mix of 
motor carriers. This action merely extends a compliance date for State 
licensing agencies to meet TSA requirements to coincide with the new 
TSA deadline.

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

    We have analyzed this action under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. This action is not a significant energy action 
within the meaning of sec. 4(b) of the Executive Order because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

Trade Impact Assessment

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

[[Page 51393]]

impose any costs on domestic or international entities and thus would 
have a neutral trade impact.

Unfunded Mandates Reform Act of 1995

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

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 Constitutional Protected Property Rights.

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 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This amended interim final rule changes the compliance dates by 
which States must meet TSA requirements. This rule will not cause an 
increase in the number of hazardous materials incidents, nor increase 
the number of non-hazardous materials commercial motor vehicle crashes. 
Therefore, the FMCSA certifies that this action is not an economically 
significant rule and does not concern an environmental risk to health 
or safety that may disproportionately affect children.

Energy Impact

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

List of Subjects in 49 CFR Part 383

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

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

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

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

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


0
2. Revise Sec.  383.141 paragraph (a) to read as follows:


Sec.  383.141  General.

    (a) Applicability date. Beginning on January 31, 2005, this section 
applies to State agencies responsible for issuing hazardous materials 
endorsements for a CDL, and applicants for such endorsements.
* * * * *

    Issued on: August 13, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04-19004 Filed 8-18-04; 8:45 am]
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