[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Rules and Regulations]
[Pages 52029-52035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20584]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383 and 384

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


Limitations on the Issuance of Commercial Driver's Licenses With 
a Hazardous Materials Endorsement; Interim Final Rule Made Final

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: FMCSA adopts those requirements of the interim final rule 
(IFR) published on May 5, 2003 (2003 IFR), and the IFR published on 
April 29, 2005 (2005 IFR), which have not previously been finalized, as 
final without change. The 2003 IFR amended the Federal Motor Carrier 
Safety Regulations (FMCSRs) to 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) in the Department of Homeland Security has first 
conducted a security threat assessment and determined that the 
applicant does not pose a security risk warranting denial of the 
hazardous materials endorsement, as required by the Uniting and 
Strengthening America by Providing Appropriate Tools Required to 
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). The 
2005 IFR amended the FMCSRs to conform to the TSA's compliance date and 
reduce 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. In addition, this rule incorporates a 
provision of the Implementing Recommendations of the 9/11 Commission 
Act of 2007 and two provisions of the FAA Reauthorization Act of 2018, 
which together authorize a State to issue a license to operate a motor 
vehicle transporting hazardous material in commerce to an individual 
who holds a valid transportation security card. In particular, the 
Agency incorporates TSA's definition of a Transportation Worker 
Identification Credential (TWIC) as equivalent to a Transportation 
Security Card (TSC).

DATES: This final rule is effective on October 31, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Selden Fritschner, CDL Division, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, 
Washington, DC 20590-0001; by email at [email protected], or by 
telephone at (202) 366-0677. If you have questions on viewing or 
submitting material to the docket, contact Docket Services, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION: 

I. Rulemaking Documents

A. Availability of Rulemaking Documents

    For access to docket FMCSA-2001-11117 to read background documents 
and comments received, go to http://www.regulations.gov at any time, or 
to Docket Services at U.S. Department of Transportation, Room W12-140, 
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.

B. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.transportation.gov/privacy.

II. Executive Summary

A. Purpose of the Regulatory Action

    This final rule adopts the provisions of the IFR published on May 
5, 2003 (68 FR 23844) that have not previously been made final, and the 
provisions of the subsequent IFR published on April 29, 2005 (70 FR 
22268). This is an administrative action to finalize these rules. This 
final rule includes conforming changes to incorporate a provision of 
the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/
11 Act) (Pub. L. 110-53, Aug. 3, 2007) and two provisions of the FAA 
Reauthorization Act of 2018 (FAA Act) (Pub. L. 115-254, Oct. 5, 2018).

B. Costs and Benefits

    This rulemaking does not make substantive changes to the 
obligations of regulated entities. It adopts as final certain elements 
of the 2003 IFR and the 2005 IFR and includes non-discretionary 
provisions from the 9/11 Act and the FAA Act. This rulemaking has no 
incremental impacts on the regulated entities.

III. Legal Basis for the Rulemaking

    The legal basis for the 2003 IFR was explained in that document (68 
FR 23844) and repeated in the 2005 IFR (70 FR 22268). Because those 
IFRs are available in the docket listed at the beginning of this 
document, the legal basis will not be repeated in detail here.
    Briefly, section 1012 of the USA PATRIOT Act enacted 49 U.S.C. 
5103a, which prohibits States from issuing a driver a hazardous 
materials endorsement to his/her CDL until the Secretary of 
Transportation has first determined that the driver does not pose a 
security risk warranting denial of the endorsement (Pub. L. 107-56, 115 
Stat. 272, 396, Oct. 26, 2001).
    The 9/11 Act made a technical correction to replace the reference 
to the ``Secretary of Transportation'' in 49 U.S.C. 5103a(a)(1) with a 
reference to the ``Secretary of Homeland Security'' (Sec. 1556, Pub. L. 
110-53, 121 Stat. 266, 475, Aug 3, 2007). The change did not alter the 
legal basis of the 2003 and 2005 IFRs because those actions rested on a 
different provision, 49 U.S.C. 31305(a)(5)(C). The 9/11 Act also 
provided that an individual who has a valid transportation employee 
identification card issued by the Secretary of Homeland Security shall 
be deemed to have met the background check required by 49 U.S.C. 5103a.
    The FAA Act (Pub. L. 115-254, Oct. 5, 2018) provides that an 
applicable individual subject to credentialing or a background 
investigation may satisfy that requirement by obtaining a valid TSC. 
Section 1978 of the FAA Act amended 49 U.S.C. 5103a(a)(1), by allowing 
a State to issue a license to operate a motor vehicle transporting 
hazardous material in commerce to an individual who holds a valid TSC 
issued under 46 U.S.C. 70105.
    The Administrative Procedure Act requires an Agency to promulgate 
final rules only after prior notice and opportunity for comment, unless 
the Agency finds good cause that notice and opportunity for public 
comment are ``impracticable, unnecessary, or contrary to the public 
interest'' (5 U.S.C. 553(b)(3)(B)). FMCSA finds good cause that notice 
and comment are

[[Page 52030]]

``unnecessary'' for this rule. This rule simply makes final certain 
provisions of two interim final rules (IFRs) that have been in effect 
since 2003 and 2005. The Agency accepted post-publication comments on 
both IFRs, most recently in 2018 (see Limitation on the Issuance of 
Commercial Driver's Licenses With a Hazardous Materials Endorsement, 
Interim rules; re-opening of comment (83 FR 62503, Dec. 4, 2018)). Many 
other provisions of both IFRs were made final by notice-and-comment 
rulemaking after 2003 and 2005. In response to a comment filed when 
this docket was reopened (83 FR 62503, Dec. 4, 2018), the Agency also 
makes ministerial changes to incorporate provisions of the 9/11 Act and 
the FAA Act. None of these actions changes the burden on drivers, motor 
carriers, or State driver licensing agencies. The incorporation of 
provisions in the 9/11 Act and FAA Act merely codifies in the FMCSRs 
provisions already in effect by operation of law. Specifically, the 
Agency incorporates TSA's definition of a TWIC as equivalent to a TSC. 
Because public comments would not result in changes to any of these 
actions, additional notice and opportunity for comment are unnecessary.

IV. Background

Regulatory History

    On May 5, 2003, FMCSA published an IFR titled ``Limitations on the 
Issuance of Commercial Driver's Licenses with a Hazardous Materials 
Endorsement'' (68 FR 23844). In that document, the Agency revised its 
regulations to require State driver licensing agencies to issue or 
renew a hazardous materials endorsement for a CDL only if TSA has first 
determined that the applicant does not pose a security risk warranting 
denial of such endorsement. A CDL renewal, transfer, or upgrade was 
also considered a new issuance and fell within the scope of these 
requirements if it involved a hazardous materials endorsement. The IFR 
implemented FMCSA's part of the requirements of section 1012 of the USA 
PATRIOT Act, which limited the issuance of hazardous materials 
licenses. Because FMCSA shares with TSA the responsibility for 
implementing section 1012--codified in 49 U.S.C. 5103a and 
31305(a)(5)(C)--TSA concurrently published an IFR containing 
regulations governing the security risk determination process in 49 CFR 
parts 1570 and 1572 (May 5, 2003, 68 FR 23852). FMCSA received 
comments, which are summarized in a document filed in the docket. No 
public meeting was requested and none was held. The IFR became 
effective upon publication on May 5, 2003.
    On April 29, 2005, FMCSA published an IFR titled ``Limitations on 
the Issuance of Commercial Driver's Licenses with a Hazardous Materials 
Endorsement'' (70 FR 22268). That rule was issued as an IFR because it 
related to the 2003 IFR. In the preamble, FMCSA wrote that the 2005 IFR 
would be subsumed into the 2003 IFR when that rulemaking was finalized. 
FMCSA's 2003 IFR provided a specific date on which States became 
subject to the new requirement. The 2005 IFR amended the FMCSRs to 
cross-reference the TSA's compliance date as the date when FMCSA's 
companion requirements also became applicable (70 FR 22268). Consistent 
with the TSA regulations, FMCSA also reduced 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. FMCSA did not receive any comments on the 2005 IFR. No 
public meeting was requested and none was held. The IFR became 
effective upon publication on April 29, 2005.
    Some of the provisions in the May 5, 2003 IFR were subsequently 
changed in notice and comment rulemaking, and became final. They are 
described in the following table. Those items listed as ``same'' in the 
second column have not been changed since they were originally 
implemented in 2003.

              Regulatory Actions Related to This Final Rule
------------------------------------------------------------------------
                                                    Changed in post 2003
  IFR provisions May 5, 2003       Current  IFR      notice and comment
                                      status             rulemaking
------------------------------------------------------------------------
Sec.   383.5 Alien............  Same.............
Sec.   383.5 CMV..............  .................  Definition of CMV was
                                                    revised May 9, 2011
                                                    (76 FR 26878);
                                                    October 2, 2014 (79
                                                    FR 59455); October
                                                    1, 2015 (80 FR
                                                    59072).
Sec.   383.5 Hazardous          Same.............
 materials.
Sec.   383.23(c) Learner's      .................  Sec.   383.23 was
 permit.                                            revised May 9, 2011
                                                    (76 FR 26878,
                                                    26879). Requirements
                                                    for commercial
                                                    learner's permit
                                                    moved to Sec.
                                                    383.25.
Sec.   383.71(a)(9)...........  .................  Sec.   383.71 was
                                                    revised May 9, 2011
                                                    (76 FR 26881).
                                                    Requirements of Sec.
                                                      383.71(a)(9) now
                                                    in Sec.
                                                    383.71(b)(8) and
                                                    (9).
Sec.   383.71(b)(3) [License    .................  Sec.   383.71 was
 transfer].                                         revised May 9, 2011
                                                    (76 FR 26881).
                                                    Requirements of Sec.
                                                      383.71(b)(3) now
                                                    in Sec.
                                                    383.71(c)(3).
Sec.   383.71(c)(3) [License    .................  Sec.   383.71 was
 renewal].                                          revised May 9, 2011
                                                    (76 FR 26881).
                                                    Requirements of Sec.
                                                      383.71(c)(3) now
                                                    in Sec.
                                                    383.71(d)(3).
Sec.   383.71(d) [License       .................  Sec.   383.71 was
 upgrades].                                         revised May 9, 2011
                                                    (76 FR 26881).
                                                    Requirements of Sec.
                                                      383.71(d) now in
                                                    Sec.   383.71(e)(1)-
                                                    (4).
Sec.   383.73(a)(5) [Initial    .................  Sec.   383.73 was
 licensure].                                        revised May 9, 2011
                                                    (76 FR 26883).
                                                    Requirements of Sec.
                                                      383.73(a)(5) moved
                                                    to Sec.
                                                    383.73(b)(8)
                                                    [Initial CDL].
Sec.   383.73(b)(4) [License    .................  Sec.   383.73 was
 transfers].                                        revised May 9, 2011
                                                    (76 FR 26883).
                                                    Requirements of Sec.
                                                      383.73(b)(4) now
                                                    in Sec.
                                                    383.73(c)(4)
                                                    [License transfers].
Sec.   383.73(c)(4) [License    .................  Sec.   383.73 was
 renewals].                                         revised May 9, 2011
                                                    (76 FR 26883).
                                                    Requirements of Sec.
                                                      383.73(c)(4) now
                                                    in Sec.
                                                    383.73(d)(1)
                                                    [License renewals].
Sec.   383.93(b)(4)             Same.............
 [Endorsement descriptions].
Part 383, Subpart I, Title....  Same.............
Sec.   383.141(a)               Subsequent IFR...  Revised by IFR April
 [Applicability date].                              29, 2005 (70 FR
                                                    22271). Corrected in
                                                    a revision October
                                                    1, 2012 (77 FR
                                                    59825).
Sec.   383.141(b)               Same.............
 [Prohibition].
Sec.   383.141(c) [Individual   Subsequent IFR...  Revised by IFR April
 notification].                                     29, 2005 (70 FR
                                                    22271).
Sec.   383.141(d) [Hazardous    Same.............
 materials endorsement renewal
 cycle].

[[Page 52031]]

 
Sec.   384.233 [Background      Same.............
 records checks].
------------------------------------------------------------------------

    In a document published in the Federal Register on December 4, 2018 
(83 FR 62503), FMCSA announced its plan to adopt the provisions of the 
IFRs that had not previously been made final, and its intention to 
incorporate sections 1977 and 1978 of the FAA Act. That document re-
opened the comment period for 15 days to ensure that interested parties 
had an opportunity to offer comments on the prior IFRs and the 
provisions from the FAA Act. The comment period closed on December 19, 
2018. FMCSA received one comment, which is discussed below.

V. Discussion of the Interim Final Rules and Those Provisions Being 
Finalized in This Final Rule

    In the 2003 IFR, FMCSA amended the CDL driver application (Sec.  
383.71) and State licensing (Sec.  383.73) procedures to require all 
individuals to pass the TSA screening process when renewing, upgrading, 
transferring, or newly applying for a CDL with a hazardous materials 
endorsement. Similarly, the Agency added a new subpart I (Sec.  
383.141) to prohibit the issuance of a hazardous materials endorsement 
for a CDL unless TSA has determined that the applicant does not pose a 
security risk warranting denial of the endorsement. FMCSA added Sec.  
383.141(c) to require a State to notify an individual at least 180 days 
(6 months) prior to the expiration date of a CDL or hazardous materials 
endorsement that he or she must pass the new TSA security screening 
process. Finally, the Agency added Sec.  383.141(d) to require States 
to adopt, at minimum, a 5-year renewal cycle for a CDL hazardous 
materials endorsement.
    To comply with statutory requirements, FMCSA added a definition of 
``Alien.'' FMCSA also revised the definition of ``Hazardous materials'' 
to include ``any chemical or biological material or agent determined by 
the Secretary of Health and Human Services or the Attorney General to 
pose a threat to national security.'' Additionally, in the definition 
of ``Commercial motor vehicle'' (CMV) and in Sec.  383.93(b)(4), FMCSA 
made conforming changes to ensure that drivers newly covered by the 
hazardous materials definition are required to obtain a CDL with a 
hazardous materials endorsement, and are subject to the TSA security 
screening process. The Agency made changes to Sec.  383.23(c) to ensure 
that the rules governing the CDL learner's permit were consistent with 
TSA's implementing regulations. FMCSA also added Sec.  384.233 to 
describe the requirements with which States must comply.
    On April 29, 2005, FMCSA published another IFR that changed Sec.  
383.141 to conform to changes in the TSA regulations. In Sec.  
383.141(a), the Agency removed the applicability date and inserted a 
cross-reference to the date in 49 CFR 1572.13(b). FMCSA also shortened 
the time frame in Sec.  383.141(c) in which a State must give notice to 
a holder from 180 days to 60 days. FMCSA required the notice to inform 
the individual that he or she may initiate the security threat 
assessment no later than 30 days before the date of expiration of the 
endorsement, not the 90 days in the 2003 IFR.
    As noted in the table above, many of these provisions have been 
amended and finalized in separate regulatory actions occurring since 
2005. Today's action will finalize the following provisions, which have 
not been otherwise revised or finalized since they were first 
promulgated in 2003 or 2005:
    (1) Definition of ``Alien'' in Sec.  383.5;
    (2) Definition of ``Hazardous materials'' in Sec.  383.5;
    (3) Addition of paragraph (b)(4) to Sec.  383.93, requiring State-
issued endorsements on CDLs when the holder is operating a CMV used to 
transport hazardous materials;
    (4) Creation of the Subpart title for subpart I (Requirement for 
Transportation Security Administration approval of hazardous materials 
endorsement issuances);
    (5) Addition of paragraphs (b) and (d) in Sec.  383.141, 
prohibiting a State from issuing, renewing, upgrading, or transferring 
a hazardous materials endorsement on a CDL unless TSA has determined 
that the holder of the CDL does not pose a security risk, and 
establishing a 5-year renewal cycle for hazardous materials 
endorsements, respectively; and
    (6) Addition of Sec.  384.233, requiring States to comply with any 
TSA requirements regarding background checks for drivers seeking to 
obtain, renew, transfer, or upgrade a hazardous materials endorsement.

VI. Comment Response

    FMCSA solicited comments to both the 2003 and 2005 IFRs. The Agency 
received over 50 comments on the 2003 IFR; a summary of those comments 
is available in docket FMCSA-2001-11117. No comments were received on 
the 2005 IFR.
    The comments filed in the FMCSA docket by the Commercial Vehicle 
Safety Alliance, the American Association of Motor Vehicle 
Administrators, and various States focused almost entirely on TSA 
requirements rather than the FMCSA rule, and most appear to have been 
filed in the TSA docket as well. TSA's 2003 IFR required States to 
begin fingerprint-based criminal records background checks by November 
3, 2003. The comments of the Iowa Department of Transportation are 
typical of those filed by other affected parties: ``[T]he compliance 
date of November 3, 2003, does not provide a reasonable amount of time 
in which to make changes to the Iowa Administrative Code, to make 
technical amendments to state statutes, to make appropriate computer 
programming changes, to train employees and to put in place the 
mechanism with law enforcement agencies for fingerprinting services or 
contract with a third party for such services. Holding the 
jurisdictions to an unreasonable compliance date may place every state 
into a status of noncompliance with a CDL program we have worked hard 
to be compliant with since 1992.'' In response to these and subsequent 
objections, TSA moved the compliance date for fingerprint-based 
background checks, first to April 1, 2004 (68 FR 63033, Nov. 7, 2003) 
and then to January 31, 2005 (69 FR 17969, Apr. 6, 2004).
    Individual drivers, trucking companies, and several States 
commented on TSA's list of offenses that would permanently disqualify a 
driver from obtaining a hazardous materials endorsement. TSA therefore 
amended that list in an IFR of November 24, 2004 (69 FR 68720).
    Finally, many States raised technical questions about the necessary 
electronic interface with TSA and the Federal Bureau of Investigation, 
which compares the fingerprints used for the criminal check against 
available

[[Page 52032]]

criminal rap sheets. These were not strictly regulatory issues and were 
resolved over time through technical and administrative solutions.
    FMCSA's IFR of April 29, 2005, simply required the States to comply 
with the various changes TSA had implemented over the previous two 
years.
    In short, the issues raised by commenters in 2003 are moot because 
they involved procedural questions that have been resolved and 
implementation deadlines that have long passed. The questions posed by 
commenters have been resolved outside the context of the IFRs, and 
requests for clarification of the IFRs or the TSA rules have been 
satisfied through direct contacts with commenters and other affected 
parties. Most importantly, commenters' objections have been met by 
significant amendments to the TSA rules on background checks and by 
subsequent conforming changes to the FMCSA regulations.
    As noted earlier, FMCSA re-opened the comment period on these two 
IFRs in late 2018, and received one comment, jointly submitted by The 
National Tank Truck Carriers, Inc. (NTTC) and the American Trucking 
Associations (ATA), regarding Sec. 1978 of the FAA Act. NTTC and ATA 
called for an update of 49 CFR 383.141, arguing that States are 
empowered by 49 U.S.C. 5103(a) to issue hazardous materials 
endorsements to drivers holding TWIC cards. NTTC and ATA requested that 
FMCSA issue guidance to ensure that States adopt a common standard. 
NTTC and ATA maintained that FMCSA is in a better position to instruct 
States on how best to verify a TWIC's validity. NTTC and ATA argued 
that, by virtue of 6 U.S.C. 1206 and Sec. 1978 of the FAA Act, Congress 
intended the State driver licensing agencies and FMCSA to be the 
primary actors in regulating the issuance of hazardous material 
endorsements when TSA background checks are not required.
    Accordingly, NTTC and ATA requested that the Agency:
     Include 6 U.S.C. 1206 into the legislative authority for 
hazardous materials endorsement background checks;
     Modify the requirements on States for issuing hazardous 
materials endorsements to conform with Sec. 1978 of the FAA Act, 
including the addition of a definition for TWIC; and
     Advise and liaise with TSA to modify 49 CFR part 1572, 
subpart A, to conform with Sec. 1978 of the FAA Act.
    NTTC and ATA requested expansion of the rule's legislative 
authority section to include Sec. 1556(b) of the Implementing 
Recommendations of the 9/11 Commission Act of 2007, codified at 6 
U.S.C. 1206. Section 1206 provides that an individual who has a valid 
transportation employee identification card issued under 46 U.S.C. 
70105 shall be deemed to have met the background records check required 
under 49 U.S.C. 5103a. Although Sec. 1206 is directed to the Department 
of Homeland Security, and not FMCSA, 49 U.S.C. 31305(a)(5)(C) requires 
this Agency to issue regulations to ensure that a CDL applicant ``is 
licensed by a State to operate the [commercial motor] vehicle after 
having first been determined under section 5103a of this title as not 
posing a security risk warranting denial of the license.'' To carry out 
Sec. 31305(a)(5)(C), FMCSA must be able to implement the mandate of 6 
U.S.C. 1206 and the amendments to 49 U.S.C. 5103a. The authority of 
those provisions is therefore implicitly delegated to FMCSA and will be 
listed in the authority citation for 49 CFR part 383.
    Further, NTTC and ATA requested modification of Sec.  383.141 to 
properly vest the authority to issue hazardous materials endorsements 
to individuals who hold TWICs with State driver licensing agencies. 
FMCSA makes this adjustment to the regulation pursuant to the FAA Act. 
The Agency is also adding a definition of TWIC as requested by the 
commenter, to ensure there is no confusion among State driver licensing 
agencies or drivers.
    Regarding the request that FMCSA liaise with the TSA to update 49 
CFR parts 1570 and 1572 to ensure that they are grounded in 
congressionally-delegated authority, FMCSA will forward this comment to 
TSA, which has the sole authority to make changes to the cited 
regulations.

VII. Regulatory Analyses

A. Executive Order (E.O). 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA determined that this final rule is not a significant 
regulatory action under section 3(f) of Executive Order (E.O.) 12866 
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as 
supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving 
Regulation and Regulatory Review, and does not require an assessment of 
potential costs and benefits under section 6(a)(3) of that Order. 
Accordingly, the Office of Management and Budget (OMB) has not reviewed 
it under that Order. It is also not significant within the meaning of 
DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 
1980; 44 FR 11034, Feb. 26, 1979).
    In a document published on December 4, 2018, FMCSA announced its 
plan to adopt the provisions of the IFRs that had not previously been 
made final, as well as its intention to incorporate sections 1977 and 
1978 of the FAA Act. These sections, which were enforceable upon the 
Act's publication on October 5, 2018, provided an exemption from the 
TSA screening process for individuals holding a valid TWIC. This final 
rule adds Sec.  383.141(b)(2) to 49 CFR to be consistent with this 
provision in the FAA Act. This rulemaking also adopts as final the 
elements of the 2003 IFR and the 2005 IFR.
    While some parts of the 2003 IFR remain unchanged, other elements 
have been changed and made final by subsequent rulemaking. This 
rulemaking finalizes the following sections:
     Section 383.5 (Definitions of ``Alien'', ``Hazardous 
materials'', and ``TWIC'');
     Section 383.93(b)(4) (Endorsements);
     Section 383.141(b), (c), and (d) (Subpart I--Requirement 
for Transportation Security Administration Approval of Hazardous 
Materials Endorsement Issuances); and
     Section 384.233 (Background Records Checks).
    Because this rulemaking is procedural and simply finalizes those 
provisions of the 2003 and 2005 IFRs that are not already final, and 
incorporates provisions of the 9/11 Act and the FAA Act, this 
rulemaking does not result in an incremental change from the IFRs. 
Those statutes have been in effect since their enactment in 2007 and 
2018, respectively. Thus, this rulemaking has no incremental impacts on 
the regulated entities.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

    This rule is not an E.O. 13771 regulatory action because this rule 
is not significant under E.O. 12866.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et 
seq.), as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal 
agencies to consider the impact of their regulatory proposals on small 
entities, analyze effective alternatives that minimize small entity 
impacts, and make their analyses available for public comment.

[[Page 52033]]

The term ``small entities'' means small businesses and not-for-profit 
organizations that are independently owned and operated and are not 
dominant in their fields, and governmental jurisdictions with 
populations under 50,000.\1\ Accordingly, DOT policy requires an 
analysis of the impact of all regulations on small entities, and 
mandates that agencies strive to lessen any adverse effects on these 
entities. Section 605 of the RFA allows an Agency to certify a rule, in 
lieu of preparing an analysis, if the rulemaking is not expected to 
have a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \1\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Available 
at: https://www.sba.gov/advocacy/regulatory-flexibility-act 
(accessed Feb. 13, 2017).
---------------------------------------------------------------------------

    This rule directly affects the States and driver applicants for a 
hazardous materials endorsement. Under the standards of the RFA, as 
amended by the SBREFA, neither the States nor driver applicants for a 
hazardous materials endorsement are small entities. States are not 
considered small entities because they do not meet the definition of a 
small entity in section 601 of the RFA. Specifically, States are not 
considered small governmental jurisdictions under section 601(5) of the 
RFA, both because State government is not included among the various 
levels of government listed in section 601(5), and because, even if 
this were the case, no State, including the District of Columbia, has a 
population of less than 50,000, which is the criterion for a 
governmental jurisdiction to be considered small under section 601(5) 
of the RFA. Driver applicants for a hazardous materials endorsement are 
not considered small entities because they too do not meet the 
definition of a small entity in section 601 of the RFA. Specifically, 
driver applicants for a hazardous materials endorsement are considered 
neither a small business under section 601(3) of the RFA, nor are they 
considered a small organization under section 601(4) of the RFA. 
Therefore, this final rule does not have an impact on a substantial 
number of small entities.
    Accordingly, I hereby certify that the action does not have a 
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of the SBREFA, FMCSA wants to 
assist small entities in understanding this final rule so that they can 
better evaluate its effects on themselves and participate in the 
rulemaking initiative. If the final rule will affect your small 
business, organization, or governmental jurisdiction and you have 
questions concerning its provisions or options for compliance; please 
consult the FMCSA point of contact, Mr. Selden Fritschner, listed in 
the FOR FURTHER INFORMATION CONTACT section of this final rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $161 million (which is the 
value equivalent of $100,000,000 in 1995, adjusted for inflation to 
2017 levels) or more in any 1 year. Though this final rule will not 
result in such an expenditure, the Agency does discuss the effects of 
this rule elsewhere in this preamble.

F. Paperwork Reduction Act

    This final rule calls for no new collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of 
Executive Order 13132 if it has ``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.'' When FMCSA issued the original IFRs on 
May 5, 2003 (68 FR 28344), and April 29, 2005 (70 FR 22268), it 
determined that those rules did not impose substantial direct costs on 
or for States, nor did they limit the policymaking discretion of 
States. Nothing in this document preempts any State law or regulation. 
Therefore, this rule does not have sufficient federalism implications 
to warrant the preparation of a Federalism Impact Statement.

H. E.O. 12988 (Civil Justice Reform)

    This final rule meets applicable standards in sections 3(a) and 
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

I. E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. The Agency determined this final rule is not economically 
significant. Therefore, no analysis of the impacts on children is 
required. In any event, this regulatory action could not 
disproportionately affect children.

J. E.O. 12630 (Taking of Private Property)

    FMCSA reviewed this final rule in accordance with E.O. 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights, and has determined it will not effect a taking of 
private property or otherwise have taking implications.

K. Privacy Impact Assessment

    Because the 2003 IFR was in effect prior to the enactment of 
section 522, of title I of division H of the Consolidated 
Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2809, 3268, Dec. 
8, 2004, 5 U.S.C. 552a note), FMCSA was not required to provide a 
Privacy Impact Assessment (PIA) for that rulemaking. This rulemaking is 
an administrative action to clarify the legal status of the 2003 and 
2005 IFRs, and it makes minor conforming changes to the CFR to 
incorporate subsequent legislation. FMCSA, however, submitted a Privacy 
Threshold Assessment (PTA) analyzing the rulemaking to the Secretary of 
Transportation's Privacy Office for formal adjudication. FMCSA provides 
the following description of the PTA, describing current requirements, 
for information.
    Section 522 of title I of division H of the Consolidated 
Appropriations Act, 2005, requires the Agency to conduct a PIA of a 
regulation that will affect the privacy of individuals. Any such

[[Page 52034]]

assessment must consider impacts of a final rule on the privacy of 
information in an identifiable form and related matters. The FMCSA 
Privacy Officer and the DOT Privacy Officer have evaluated the risks 
and effects this rulemaking might have on collecting, storing, and 
sharing personally identifiable information (PII) and have evaluated 
protections and alternative information handling processes in 
developing the final rule in order to mitigate potential privacy risks 
and have determined that this rule does not require the collection of 
PII by FMCSA. This rulemaking has the ultimate effect of requiring 
individuals to provide sensitive PII to the Transportation Security 
Administration (TSA). Individuals should refer to the TSA privacy 
office website at https://www.dhs.gov/privacy-documents-transportation-security-administration-tsa for more information about TSA's collection 
and use of the data.
    The E-Government Act of 2002, Public Law 107-347, Sec. 208, 116 
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct 
a PIA for new or substantially changed technology that collects, 
maintains, or disseminates information in an identifiable form. No new 
or substantially changed technology would collect, maintain, or 
disseminate information as a result of this rule. This is formally 
documented in the PTA submitted to the DOT Privacy Officer. Therefore, 
FMCSA has not conducted a privacy impact assessment.

L. E.O. 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
program.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this final rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. The Agency has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, it 
does not require a Statement of Energy Effects under E.O. 13211. The 
Administrator of the Office of Information and Regulatory Affairs has 
not designated it as a significant energy action. Therefore, it does 
not require a Statement of Energy Effects under Executive Order 13211.

N. E.O. 13175 (Indian Tribal Governments)

    This rule does not have tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes.

O. National Technology Transfer and Advancement Act (Technical 
Standards)

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) directs agencies to use voluntary consensus standards in their 
regulatory activities unless the agency provides Congress, through OMB, 
with an explanation of why using these standards would be inconsistent 
with applicable law or otherwise impractical. Voluntary consensus 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) are standards that are developed or adopted by 
voluntary consensus standards bodies. This rule does not use technical 
standards. Therefore, FMCSA did not consider the use of voluntary 
consensus standards.

P. Environment (National Environmental Policy Act of 1969 (NEPA))

    FMCSA analyzed this rule for the purpose of NEPA (42 U.S.C. 4321 et 
seq.) and determined this action is categorically excluded from further 
analysis and documentation in an environmental assessment or 
environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, 
Mar. 1, 2004), Appendix 2, paragraph 6.d. That categorical exclusion 
relates to establishing regulations and actions taken pursuant to these 
regulations that concern the training, qualifying, licensing, 
certifying, and managing of personnel.

List of Subjects

49 CFR Part 383

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

49 CFR Part 384

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Motor carriers.

    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: 6 U.S.C. 1206, 49 U.S.C. 521, 31136, 31301 et seq., 
and 31502; secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 
1766, 1767; sec. 1012(b) of Pub. L. 107-56; 115 Stat. 272, 297, sec. 
4140 of Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 
112-141, 126 Stat. 405, 830; secs. 5401 and 7208 of Pub. L. 114-94, 
129 Stat. 1312, 1546, 1593; and 49 CFR 1.87.

0
2. In Sec.  383.5:
0
a. Adopt as final without change the definitions of ``Alien'' and 
``Hazardous materials'' of the interim rule published May 5, 2003 (68 
FR 23844); and
0
b. Add, in alphabetical order, a definition for ``TWIC''.
    The addition reads as follows:


Sec.  383.5  Definitions.

* * * * *
    TWIC means Transportation Worker Identification Credential as that 
term is defined in 49 CFR 1570.3, which is the transportation security 
card issued by TSA under the authority of 46 U.S.C. 70105.
* * * * *


Sec.  383.93  [Adopted as final and Amended]

0
3. Adopt as final the revision to Sec.  383.93(b)(4) in the interim 
rule published May 5, 2003 (68 FR 23844) and revise paragraph (b)(4) by 
removing ``, or'' and adding ``; or'' in its place.

0
4. In Sec.  383.141:
0
a. Revise paragraph (b);
0
b. Adopt as final without change paragraph (d) of the interim rule 
published May 5, 2003 (68 FR 23844); and
0
c. Adopt as final without change paragraph (c) of the interim rule 
published April 29, 2005 (70 FR 22268).
    The revision reads as follows:


Sec.  383.141  General.

* * * * *
    (b) Prohibition. A state may not issue, renew, upgrade, or transfer 
a hazardous material endorsement for a CDL to any individual 
authorizing that individual to operate a commercial motor vehicle 
transporting a hazardous material in commerce unless--
    (1) The Transportation Security Administration has determined that 
the individual does not pose a security risk warranting denial of the 
endorsement; or

[[Page 52035]]

    (2) The individual holds a valid TWIC.
* * * * *

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

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

    Authority:  6 U.S.C. 1206, 49 U.S.C. 31136, 31301 et seq., and 
31502; secs. 103 and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; 
sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5401 and 
7208 of Pub. L. 114-94, 129 Stat. 1312, 1546, 1593; and 49 CFR 1.87.

Sec.  384.233  [Adopted as final]

0
6. Adopt as final without change Sec.  384.233 of the interim rule 
published May 5, 2003 (68 FR 23844).

    Issued under authority delegated in 49 CFR 1.87.

    Dated: September 18, 2019.
 Raymond P. Martinez,
 Administrator.
[FR Doc. 2019-20584 Filed 9-30-19; 8:45 am]
BILLING CODE 4910-EX-P