[Federal Register Volume 71, Number 74 (Tuesday, April 18, 2006)]
[Rules and Regulations]
[Pages 19823-19826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3663]


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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1327

[Docket No. NHTSA-05-22265]
RIN 2127-AJ66


Procedures for Participating in and Receiving Data From the 
National Driver Register Problem Driver Pointer System Pursuant to a 
Personnel Security Investigation and Determination

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Final rule.

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SUMMARY: This final rule announces that the amendments to the agency's 
National Driver Register (NDR) regulations that were published in an 
interim final rule to reflect changes made to the National Driver 
Register Act of 1982 by Section 1061 of the Ronald W. Reagan National 
Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375) will 
remain in effect with one minor change. The amendments authorize a 
Federal department or agency that investigates an individual for the 
purpose of determining the individual's eligibility to access national 
security information to request and receive information from the 
National Driver Register, upon request and consent of the individual. 
This final rule establishes the procedures for individuals to request 
and for the Federal department or agency to receive NDR information.

DATES: This final rule becomes effective on June 19, 2006.

FOR FURTHER INFORMATION CONTACT: For program issues: Mr. Sean McLaurin, 
Chief, National Driver Register, NPO-122, National Highway Traffic 
Safety Administration, 400 Seventh Street, SW., Washington, DC, 20590. 
Telephone: (202) 366-4800. For legal issues: Mr. Roland (R.T.) Baumann 
III, Attorney-Advisor, Office of the Chief Counsel, NCC-113, National 
Highway Traffic Safety Administration, 400 Seventh Street, SW., 
Washington, DC, 20590. Telephone: (202) 366-1834.

SUPPLEMENTARY INFORMATION: 

I. Background

A. National Driver Register

    The National Driver Register (NDR) is a central file of information 
on individuals whose license to operate a motor vehicle in a State has 
been denied, revoked, suspended, or canceled, for cause, or who have 
been convicted of certain serious traffic-related violations in a 
State, such as racing on the highway or driving while impaired by 
alcohol or other drugs. The NDR was designed to prevent such 
individuals from obtaining a driver's license in another State, using a 
device known as the Problem Driver Pointer System (PDPS).
    The PDPS consists of a list of problem drivers (with certain 
identifying information) contained in ``pointer'' records. These 
records ``point'' to the State where the substantive adverse records 
about the driver can be obtained. The PDPS system is fully automated 
and enables State driver licensing officials to determine 
instantaneously whether another State has taken adverse action against 
a license applicant.

B. National Driver Register Act of 1982

    The NDR Act of 1982, as amended, 49 U.S.C. 30301, et seq., 
authorizes State chief driver licensing officials to request and 
receive information from the NDR for driver licensing and driver 
improvement purposes. When an individual applies for a driver's 
license, for example, these State officials are authorized to request 
and receive NDR information to determine whether the applicant's 
driver's license has been withdrawn for cause or the applicant has been 
convicted of specific offenses in another State. Because the NDR is a 
nationwide index, State chief driver licensing officials need only 
submit a single inquiry to obtain this information.
    State chief driver licensing officials also are authorized under 
the NDR Act to request NDR information on behalf of other NDR users for 
specific transportation safety purposes. The NDR Act authorizes the 
following entities to receive NDR information for limited 
transportation purposes: The National Transportation Safety Board and 
the Federal Highway Administration for accident investigation purposes; 
employers and prospective employers of motor vehicle operators; the 
Federal Aviation Administration (FAA) regarding any individual who 
holds or has applied for an airman's certificate; air carriers 
regarding individuals who are seeking employment with the air carrier; 
the Federal Railroad Administration (FRA) and employers or prospective 
employers of locomotive operators; and the U.S. Coast Guard regarding 
any individual who holds or who has applied for a license, certificate 
of registry, or a merchant mariner's document. The Act also allows

[[Page 19824]]

individuals to learn whether information about themselves is on the NDR 
file and to receive any such information.
    The NDR statute allows the head of a Federal department or agency 
authorized to receive information regarding an individual from the NDR 
to request and receive such information from the Secretary of 
Transportation. 49 U.S.C. 30305(b)(11). This provision, by its 
operation, affords direct access to the NDR to identified Federal 
departments and agencies (through NHTSA), without the need to submit an 
inquiry to a State chief driver licensing official. In practice, 
virtually all Federal departments or agencies with specific access 
provisions have submitted inquiries directly to NHTSA.

C. Recent Amendment to National Driver Act of 1982

    On October 28, 2004, Public Law 108-375 amended the NDR Act of 
1982. Section 1061 of Public Law 108-375 allows ``[a]n individual who 
has or is seeking access to national security information for purposes 
of Executive Order No. 12968, or any successor Executive Order, or an 
individual who is being investigated for Federal employment under 
authority of Executive Order No. 10450, or any successor Executive 
Order, [to] request the chief driver licensing official of a State to 
provide [NDR] information about the individual * * * to a Federal 
department or agency that is authorized to investigate the individual 
for the purpose of assisting in the determination of the eligibility of 
the individual for access to national security information or for 
Federal employment in a position requiring access to national security 
information.'' The agency published an interim final rule on September 
2, 2005 (70 FR 52296), amending the NDR regulations, 23 CFR part 1327, 
to incorporate procedures governing access to NDR information to assist 
in personnel security investigations.

II. Procedures for Requesting and Receiving NDR Information for 
Personnel Security Investigations

A. Interim Final Rule

    The interim final rule provided that the procedures that a Federal 
department or agency performing personnel security investigations of 
individuals must follow to receive NDR information are similar to those 
followed by the FAA, the FRA, and the U.S. Coast Guard in checking 
their applicants for employment or certification. Specifically, the 
interim final rule amended the regulatory sections at 23 CFR 1327.6 and 
1327.7 to set forth procedures that a Federal agency must use to 
request NDR information directly from the agency.
    The interim final rule explained that the Federal department or 
agency may not, itself, initiate a request for NDR information. Rather, 
the individual subject to a personnel security investigation must do 
so. The interim final rule stated that to initiate a request, the 
individual must either complete, sign and submit a request to the chief 
driver licensing official of a State for an NDR file search or 
authorize the Federal department or agency to request the chief driver 
licensing official to conduct the NDR file search by providing a 
written and signed consent. Just as in NDR requests for traffic safety 
purposes, the request or written consent must state that NDR records 
are being requested; state specifically who is authorized to receive 
the records; be dated and signed by the individual; and state that it 
is recommended (but not required) that the Federal department or agency 
verify matches with the state of record. Consistent with a specific 
statutory restriction concerning personnel security investigations, it 
must also state that the authorization is valid only during the 
performance of the security investigation.
    In accordance with Public Law 108-375, the interim final rule 
amended the NDR regulation at 23 CFR 1327.5 to provide that a Federal 
department or agency also may request NDR information through a State 
chief driver licensing official. Since all 50 States and the District 
of Columbia currently participate in the NDR PDPS, the interim final 
rule provided procedures that States must follow to accept NDR 
inquiries from a Federal department or agency for personnel security 
investigations.
    To make clear that a covered personnel security investigation is 
limited to an investigation for the purpose of assisting in the 
determination of eligibility for access to national security 
information or for Federal employment in a position requiring access to 
national security information, the interim final rule also added a 
definition of ``personnel security investigation'' to 23 CFR 1327.3.

B. Request for Comments

    The agency explained that publication as an interim final rule, 
without prior notice and opportunity for comment, was necessary to 
permit individuals subject to background investigations for security 
clearances to submit requests to the NDR and Federal departments or 
agencies to receive NDR information as soon as possible. The changes 
made to the regulation in the interim final rule were minor and simply 
reflected the statutory amendments enacted by Public Law 108-375. The 
changes were nearly identical to existing regulatory procedures being 
followed by the States, by airmen, by seamen/merchant mariners, and by 
others in the field of transportation safety, which were previously 
subjected to notice and opportunity for comment.
    Although the agency indicated that no further regulatory action was 
necessary on its part to make the changes effective, it provided a 60-
day comment period for interested parties to present data, views and 
arguments on the interim final rule. Those comments were due on 
November 1, 2005. The interim final rule explained that the agency 
would consider and respond to all comments and, if appropriate, would 
make further amendments to the applicable provisions of 23 CFR part 
1327. No comments were received. Accordingly, the final rule adopts the 
interim final rule subject to a single change to correct a citation 
error that occurred in section 1327.5(d)(2) of the regulatory text.

III. Statutory Basis for This Rule

    The final rule implements a NDR access provision mandated by 
section 1061 of the Ronald W. Reagan National Defense Authorization Act 
for Fiscal Year 2005 (Pub. L. 108-375). The NDR Act of 1982 (Pub. L. 
97-364) provides general authority to issue regulations regarding 
access to the PDPS.

IV. Regulatory Analyses and Notices

A. Executive Order 12988 (Civil Justice Reform)

    This action does not have any preemptive or retroactive effect. 
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.

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

    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993) provides for making determinations on whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and the requirements of the 
Executive Order. The agency has considered the impact of this action 
under Executive Order 12866 and determined that it is not

[[Page 19825]]

significant. The action is also not significant under the Department of 
Transportation's regulatory policies and procedures. The final rule 
implements amendments contained in Public Law 108-375 providing NDR 
access to another group of NDR individuals--individuals who are subject 
to personnel security investigations. Because Public Law 108-375 
provides specific NDR access to Federal departments or agencies 
performing personnel security investigations and because the NDR Act 
allows Federal agencies with specific access provisions to submit them 
directly to the Secretary of Transportation (by delegation, to NHTSA), 
this action will not increase significantly the number of NDR inquiries 
processed by State driver licensing officials. Most, if not all, such 
inquiries will likely be submitted to NHTSA. Accordingly, a full 
regulatory evaluation is not required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C. 
601-612) requires an agency to review regulations to assess their 
impact on small entities unless the agency determines that a rule is 
not expected to have a significant impact on a substantial number of 
small entities. I hereby certify that the action would not have a 
significant impact on a substantial number of small entities. 
Accordingly, the preparation of a Regulatory Flexibility Analysis is 
not required.

D. Paperwork Reduction Act

    There are reporting requirements contained in the regulation that 
this final rule is amending that are considered to be information 
collection requirements, as that term is defined by the Office of 
Management and Budget (OMB) in 5 CFR part 1320. The final rule does not 
change the reporting requirements for participating States or the 
procedures to be followed by individuals who request NDR information. 
These requirements have been submitted previously to and approved by 
OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 3500, et seq.). 
These requirements have been approved through July 30, 2006, under OMB 
No. 2127-0001.

E. National Environmental Policy Act

    The agency has reviewed this action for the purposes of the 
National Environmental Policy Act (42 U.S.C. 4321, et seq.) and has 
determined that it would not have a significant impact on the quality 
of the human environment.

F. The Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires 
Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed 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 $100 
million or more (adjusted annually for inflation) in any one year. The 
final rule may require that some State driver licensing officials 
process additional inquiries submitted to them for purposes of 
personnel security investigations. However, because the statute allows 
this type of inquiry to be submitted directly to the Secretary of 
Transportation (by delegation, to NHTSA), we do not anticipate that 
States will face a significant increase in NDR requests and, therefore, 
in associated costs. Most, if not all, such requirements will likely be 
submitted to NHTSA. Accordingly, this action does not require an 
assessment under that law.

G. Executive Order 13132 (Federalism)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612, and it has been determined 
that this action does not have sufficient federalism implications to 
warrant preparation of a Federalism Assessment. Accordingly, a 
Federalism Assessment is not required.

H. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    The agency has analyzed this action under Executive Order 13175, 
and has determined that the action would not have a substantial direct 
effect on one or more Indian tribes, would not impose substantial 
direct compliance costs on Indian tribal governments, and would not 
preempt tribal law. Therefore, a tribal summary impact statement is not 
required.

I. Executive Order 13045, Economically Significant Rules 
Disproportionately Affecting Children

    This final rule is not subject to E.O. 13045 because it is not 
``economically significant'' as defined under E.O. 12866, and does not 
concern an environmental, health or safety risk that NHTSA has reason 
to believe may have a disproportionate effect on children.

J. Plain Language

    Executive Order 12866 requires each agency to write all rules in 
plain language. Application of the principles of plain language 
includes consideration of the following questions:

--Have we organized the material to suit the public's needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that is not clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Could we improve clarity by adding tables, lists, or diagrams?
--What else could we do to make this rulemaking easier to understand?
    If you have any comments about the Plain Language implications of 
this final rule, please address them to the person listed in the FOR 
FURTHER INFORMATION CONTACT heading.

K. Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory 
section listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this section with the 
Unified Agenda.

L. Privacy Act

    Please note that 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 23 CFR Part 1327

    Highway safety, Intergovernmental relations, and Reporting and 
recordkeeping requirements.

0
Accordingly, the interim final rule amending 23 CFR part 1327, which 
was published at 70 FR 52296 on September 2, 2005, is adopted as a 
final rule, with the following change:

PART 1327--PROCEDURES FOR PARTICIPATING IN AND RECEIVING 
INFORMATION FROM THE NATIONAL DRIVER REGISTER PROBLEM DRIVER 
POINTER SYSTEM

0
1. The authority citation for part 1327 continues to read as follows:

    Authority: Pub. L. 97-364, 96 Stat. 1740, as amended (49 U.S.C. 
30301 et seq.); delegation of authority at 49 CFR 1.50.


[[Page 19826]]



0
2. Section 1327.5 is amended by revising paragraph (d)(2) to read as 
follows:


Sec.  1327.5  Conditions for becoming a participating State.

* * * * *
    (d) * * *
* * * * *
    (2) Any request made by a Federal department or agency may include, 
in lieu of the actual information described in paragraphs (d)(1)(iii) 
through (v) of this section, a certification that a written consent was 
signed and dated by the individual or the individual's legal 
representative, specifically stated that the authorization is valid 
only for the duration of the personnel security investigation, and 
specifically stated that it is recommended, but not required, that the 
authorized recipient of the information verify matches with the State 
of Record.
* * * * *

    Issued on: April 12, 2006.
Jacqueline Glassman,
Deputy Administrator.
[FR Doc. 06-3663 Filed 4-17-06; 8:45 am]
BILLING CODE 4910-59-P