[Federal Register: April 29, 2005 (Volume 70, Number 82)]
[Rules and Regulations]
[Page 22268-22271]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ap05-12]
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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]