[Federal Register Volume 70, Number 82 (Friday, April 29, 2005)]
[Rules and Regulations]
[Pages 22268-22271]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-8572]


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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.

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SUMMARY: The Federal Motor Carrier Safety Regulations (FMCSRs) prohibit 
States from issuing, renewing, transferring or upgrading a commercial 
driver's license (CDL) with a hazardous materials endorsement unless 
the Transportation Security Administration (TSA) has first conducted a 
security threat assessment of the applicant and determined the 
applicant does not pose a security risk warranting denial of the 
hazardous materials endorsement. The FMCSRs currently provide a 
specific date on which States become subject to the new requirement. 
This interim final rule amends the FMCSRs to cross-reference the TSA's 
compliance date as the date when FMCSA's companion requirements also 
become applicable. Consistent with TSA regulations, FMCSA also reduces 
the amount of advance notice that States must provide to drivers that a 
security threat assessment will be performed when they renew a 
hazardous materials endorsement. This rule is being issued as an IFR 
because it relates back to an existing substantive IFR published on May 
5, 2003. This IFR will be subsumed into that rulemaking when it is 
finalized. All outstanding comments on these issues will be addressed 
in that final document.

DATES: This rule is effective on April 29, 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: This interim final rule is available for 
inspection and copying between 10 a.m. and 5 p.m., Monday through 
Friday, except Federal holidays at the Docket Clerk, U.S. DOT Dockets, 
Room PL-401, Department of Transportation, 400 7th Street, SW., 
Washington, DC 20590-0001. An electronic version of this document along 
with all documents entered into this docket is available on the 
Internet at http://dms.dot.gov.

Summary of Today's Action

    The Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act 
[Pub. L. 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. TSA has established the security threat 
assessment, including security risk factors, citizenship/immigration 
requirements for the hazardous

[[Page 22269]]

materials endorsement, fingerprinting options, fees, compliance dates 
and other process details. FMCSA regulations require State licensing 
agencies to comply with TSA's security threat assessment process. The 
FMCSA compliance dates for the States under 49 CFR part 383, subpart 
I--Requirements for Transportation Security Administration Approval of 
Hazardous Materials Endorsement Issuances, are the same as those in 49 
CFR 1572.13 of the TSA security requirements. More specifically, the 
applicability date under Sec.  383.141(a) is always the same as the 
deadline for TSA requirements under Sec.  1572.13(b). To ensure FMCSA's 
regulations always remain current with any changes made by TSA which 
affect the Sec.  383.141(a) applicability date, the agency revises 
Sec.  383.141(a) to cross-reference the date under 49 CFR 1572.13(b).
    On May 5, 2003, TSA published an interim final rule (68 FR 23852, 
referred to as the May 5 IFR) that established the security threat 
assessment requirements for drivers who apply for, renew, or transfer a 
hazardous materials endorsement for a commercial driver's license. The 
May 5 IFR required States to notify drivers who hold a hazardous 
materials endorsement about the need for a security threat assessment 
180 days prior to the expiration date of the endorsement. The notice 
was required to inform the driver that he or she could initiate the 
security threat assessment at any time after receiving the notice, but 
no later than 90 days before the expiration date of the driver's 
endorsement.
    On November 24, 2004, TSA published an interim final rule (Security 
Threat Assessment for Individuals Applying for a Hazardous Materials 
Endorsement for a Commercial Drivers License, 69 FR 68720) amending the 
security threat assessment standards established under the May 5 IFR. 
For reasons described in the November 24, 2004 interim final rule, TSA 
has reduced the amount of advance notice States must provide to a 
driver who holds a hazardous materials endorsement about the need for a 
security threat assessment. Accordingly, FMCSA amends its regulations 
to implement the November 24, 2004, changes. At least 60 days prior to 
the expiration date of the CDL or hazardous materials endorsement, a 
State must notify the holder of a hazardous materials endorsement that 
he or she must pass TSA's security threat assessment as a condition of 
renewing the endorsement. The notice must inform the individual that he 
or she may initiate the security threat assessment at any time after 
receiving the notice, but no later than 30 days before the expiration 
date of the individual's endorsement. These timelines have been 
shortened from the 180/90-day notification deadlines in existing Sec.  
383.141(c).

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 cross-
references TSA's compliance deadline for the requirements of part 383, 
subpart I and reduces the lead-time States must give individuals 
currently holding a hazardous materials endorsement under Sec.  
383.141(c). Because the rule relieves a burden on stakeholders by 
extending the general compliance date and relaxing the dates for State 
driver notification requirements, FMCSA has concluded that it is within 
the scope of the May 5, 2003, IFR which requested comment and that 
further notice and comment on this issue are unnecessary.

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

    FMCSA has determined this interim final rule is a significant 
regulatory action within the meaning of Executive Order 12866 and 
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 substantial public interest. This 
rule does not impose any costs on any public, private, or government 
sector, therefore further economic analysis is unnecessary.

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA), as amended, was 
enacted by Congress to ensure 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.'' In this case, the requirement 
is inapplicable because a notice of proposed rulemaking was not 
required. Nonetheless, I certify that this interim final rule will not 
have a significant economic impact on a substantial number of small 
entities. As noted above, this interim final rule applies only to State 
governments and, through them, certain commercial motor vehicle 
drivers. It 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.'' The term ``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 
November 24, 2004 (69 FR 68720), 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.

[[Page 22270]]

Executive Order 12372 (Intergovernmental Review)

    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 changes a number of compliance dates 
for State licensing agencies to coincide with the new TSA deadlines.

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 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 $120.7 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 to 
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 $120.7 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.

Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

List of Subjects in 49 CFR Part 383

    Administrative practice and procedure, Commercial driver's license,

[[Page 22271]]

Commercial motor vehicles, Highway safety, Motor carriers.


0
For the reasons set forth in the preamble, 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. Amend Sec.  383.141 to revise paragraphs (a) and (c) to read as 
follows:


Sec.  383.141  General.

    (a) Applicability date. Beginning on the date(s) listed in 49 CFR 
1572.13(b), this section applies to State agencies responsible for 
issuing hazardous materials endorsements for a CDL, and applicants for 
such endorsements.
* * * * *
    (c) Individual notification. At least 60 days prior to the 
expiration date of the CDL or hazardous materials endorsement, a State 
must notify the holder of a hazardous materials endorsement that the 
individual must pass a Transportation Security Administration security 
threat assessment process as part of any application for renewal of the 
hazardous materials endorsement. The notice must advise a driver that, 
in order to expedite the security screening process, he or she should 
file a renewal application as soon as possible, but not later than 30 
days before the date of expiration of the endorsement. An individual 
who does not successfully complete the Transportation Security 
Administration security threat assessment process referenced in 
paragraph (b) of this section may not be issued a hazardous materials 
endorsement.
* * * * *

    Issued on: April 25, 2005.
Annette M. Sandberg,
Administrator.
[FR Doc. 05-8572 Filed 4-28-05; 8:45 am]
BILLING CODE 4910-EX-P